“There is an old joke which asks – how to tell if a politician is lying? The answer – if they are moving their lips.” (source)
Source (original): Rospatent
Summary: An interview prepared by Battistelli’s department, inclusive of all the ‘official’ narratives, is now translated into English and responded to succinctly (for accuracy and a more complete record of events)
THE EPO‘s President is basically a politician, and like most politicians he habitually lies with apparent sincerity. We recently asked for a translation of an article from Juve, which is essentially a written interview in which Battistelli and his PR people stick their ‘official’ story. We now have a complete translation to which we respond in-line (below the quotes):
Here is the introductory part:
EPO PRESIDENT BATTISTELLI IN INTERVIEW: “I AM DELEGATING RESPONSIBILITIES”
In July, the European Patent Office reformed its Boards of Appeals. This reform must be implemented by the beginning of 2017. To achieve this, a President of the Boards of Appeal has to be found. Critics complain that the reform will not give the EPO Boards enough independence. In this JUVE interview, EPO President Battistelli gives his view and explains why patent renewal fees will not necessarily reduce if the UK leaves the EU and, with it, the new European patent system.
We gave a sort of translation of the mirage of independence for the boards. AMBA later refuted that as well.
Regarding the UK, it does not have to leave the EPO if it leaves the EU as the EPO is not an EU organisation and it includes several member states outside the EU.
JUVE: The Administrative Council and the Office describe the reform of the Boards of Appeal as a milestone for the strengthening of status, efficiency and sustainability of the EPO appeal system. Why?
BENOIT BATTISTELLI: The reform is pioneering because attempts at a structural reform have already failed twice, in 1995 and 2004. The Administrative Council gave the Office the mandate to develop a reform proposal which was within the boundaries of the European Patent Convention (EPC). This allowed, in spite of the scope of the reform, a fast implementation. Because otherwise a protracted process would have been needed, including a diplomatic conference and ratification by the parliaments of all 38 member states.
What he is trying to say is, suddenly he cares about the EPC, even though we showed many times in the past that Battistelli arrogantly defies the EPC.
What “fast implementation” means in this context is a forced implementation that does not allow much time for discussion and potentially resistance (same as in patent appeals). It’s just autocracy. To him, diplomacy is just a nuisance that needs to be overcome. We have seen a lot of this in the UPC.
JUVE: What have you achieved?
BENOIT BATTISTELLI: The Boards of Appeal play a very important role in the European Patent System. The reform shall emphasise that and ensure the sustainability of the EPO appeal system: it strengthens the organisational and managerial autonomy of the boards, the perception of their independence, and their efficiency. In addition, a series of measures will be introduced, that will allow the Administrative Council and the future President of the Boards of Appeal to improve legal proceedings for the parties – for instance, by shortening process times and making the appeal procedures more consistent.
In reality, all that’s being achieved is shrinking of the appeals body, less opportunities to appeal (not to mention less time), higher financial barriers (for access) to appeals and no substantial separation at all, given that Battistelli is, according to Board 28, continuing to attack a judge.
JUVE: Nevertheless, not only EPO Boards of Appeal members have criticised that the emphasis has been too much on efficiency and less on the independence of the EPO Boards. How do you respond?
BENOIT BATTISTELLI: The independence of the Boards of Appeal is clearly incorporated in the EPC, and their role as an independent judicial institution has always been recognised by the highest European and national courts. Therefore, the reform shall primarily improve the perception of independence. To achieve this the current DG3 will be restructured into a Boards of Appeal Unit with its own President. The President of the Boards of Appeal will be given tasks and powers which have been delegated to him by the President of the EPO. As far as management duties are concerned, he is only answerable to the Administrative Council. This is a substantial change. This is because as well as improvements to independence the President of the Boards of Appeal shall also increase the efficiency of the Boards of Appeal.
When Battistelli alludes to the EPC he basically admits that he violates it. Why? Because it’s abundantly clear that he has not respected their independence and continues doing so. He keeps speaking about “perception of independence” perhaps because he knows that he wants to give them no real independence; he’s faking it.
JUVE: Why is this at all necessary?
BENOIT BATTISTELLI: The current backlog and the protracted length of the procedure need sorting out. The continuous increase in litigation in the last couple of decades is, however, in no way only limited to the EPO Boards of Appeal. However, it is necessary to confront this situation with appropriate measures.
In other words, quality control is a nuisance to Battistelli because it means that the whole process is slower and there is a queue. God forbid! He acknowledges an increase in litigation, as though this is desirable or somewhat of a given. So in short, speed and raw quantity (quantified using a dumb politician’s yardstick) trump quality now. It’s quite evident from what he is saying.
JUVE: By having, with the new Boards of Appeal Committee, a joint right of proposal for the new President you will have further influence on the Boards of Appeal. Why is the participation of the EPO President at all necessary in this matter?
BENOIT BATTISTELLI: It is stipulated in the EPC that the Chairman of the Enlarged Board of Appeal shall be appointed by the Administrative Council upon a proposal by the President of the Office. According to the reform, the Office President and Boards of Appeal Committee shall jointly propose the President of the Boards of Appeal, who will be delegated managerial responsibilities. In this way the President of the EPO will share the right of proposal with the Committee – currently he alone has this right. This will allow the President of the Boards of Appeal to lead his unit without influence by the management of the EPO.
Given that the Administrative Council is almost in bed with Battistelli (hardly overseeing him at all), and given the track record of bad faith from both, it seems apparent that the above answer is lots of hogwash and hot air.
JUVE: Once more: why, as Office President, will you continue to participate in these matters?
BENOIT BATTISTELLI: At the end of the day the President is legally responsible for ensuring that the whole Office functions in a proper way, including the budget. Hence, he must be able to trust that the person that takes over his powers exercises them properly. The decision to appoint the President of the Boards of Appeal lies, anyway, with the Administrative Council.
…which in itself is somewhat in the pocket — some believe almost literally — of Battistelli.
JUVE: When will you delegate your powers?
BENOIT BATTISTELLI. As soon as the President of the Boards of Appeal has been appointed I will be able to sign a document to transfer powers.
One can safely assume that Battistelli will have veto power and can therefore ensure that the person is subservient or obedient to begin with.
JUVE: Has it already been decided who the first President of the Boards of Appeal will be?
BENOIT BATTISTELLI: He shall be appointed by the Administrative Council before the end of the year. It is planned that he will take up his duties when the reform comes into effect in January 2017.
Notice the word “he” (maybe an artifact of translation from German). Given the lack of diversity at the Office, it would not at all be surprising if the person turned out to be white male, possibly French and right wing.
JUVE: In the future the Office and the Boards of Appeal shall be separately housed in Munich. Has there already been a decision over the future location of the Boards of Appeal?
BENOIT BATTISTELLI. Negotiations with property owners in Munich are already very advanced and hence the decision can be made in October.
They already decided, but they are playing a game here.
JUVE: The disciplinary procedure against the judge that you suspended has still not been concluded. In June the Enlarged Board of Appeal deviated from the recommendation, by the Administrative Council, of dismissal. By October Jesper Kongstad, Chairman of the Administrative Council, has to draw up a proposal as to how to further proceed. According to the statutes he has to propose that the judge be reinstated. You wouldn’t favour that?
BENOIT BATTISTELLI: According to our Convention the Administrative Council has disciplinary authority over Boards of Appeal members, while the President has the power to suggest disciplinary measures and furthermore carries total responsibility for the proper functioning of the Office. In the case in question the Council decided in December 2014, because of the knowledge of serious misconduct, to suspend the Boards of Appeal member from service. After the submission of an extensive investigation report the Council, in March 2015, initiated a disciplinary procedure. Under the chairmanship of a former ECJ judge, a disciplinary committee, which also had members of the EPO Boards of Appeal and experienced external lawyers, came unanimously to the conclusion that the serious misconduct of the Boards of Appeal member demanded his dismissal. In decisions in June and October 2015 the Council followed this review and requested that the Enlarged Board of Appeal submit a proposal for dismissal. However, almost a year after this request the Enlarged Board of Appeal decided to not follow the request, because I pointed out that at the EPO disciplinary proceedings are confidential and cannot be carried out in public. These are the facts. Let us be clear: this isn’t about personal sensitivities, but the integrity of the appeal system at the EPO.
Complete nonsense. Battistelli’s lips just move a lot.
Regarding confidentiality, it’s quite likely Battistelli and his goons who leaked smears to the media in order to defame the accused, making the Office look worse than bad, one might even say “corrupt”. A short time afterwards they began attacking me too — all this shortly after they had signed the FTI Consulting contract that was later expanded to dominate Dutch and German media (separate from the EPO’s payments to media giants which soon turned into EPO mouthpieces).
JUVE: The Brexit decision endangers the start of the new European patent system. The EPO is involved in this system. What chance do you see that the Unitary Patent and hence the whole system will start in April 2017 as planned?
BENOIT BATTISTELLI: The EPO hopes to find a solution that lets the Unitary Patent come into force as soon as possible. It is here crucial that partaking member states ratify the Agreement on a Unified Patent Court. After the referendum the Dutch parliament agreed to ratification and so sent out an important political signal. Independently from the political decisions it can be assumed that the system will come, albeit very probably with a delay. The work is, however, far too advanced, and has generated too much positive momentum, for it to be shelved.
No, the UPC is almost certainly dead (in its current form), if not just in the UK then in the whole of Europe. They’ll probably try to repackage it and maybe even rename it again. This can take years and there’s no guarantee anything will come out of it. In the mean time, the EPO is rotting and there's expectation of layoffs within a couple of years if Battistelli's vision gets implemented.
JUVE: If the UK can’t take part in the system will the renewal fees for the EU patent have to be recalculated?
BENOIT BATTISTELLI: It is too early to estimate the impact on the renewal fees for the Unitary Patent. They have been so determined to correspond to the sum of the renewal fees for the four countries in which classical European patents are most frequently validated. This so-called “Top 4” solution was preceded by very long and difficult discussions of the member states. By the way, the level of the fees was already decided before the accession of Italy and wasn’t increased afterwards, because the member states didn’t want to reopen the debate. This could also be the case if the UK leaves. Finally, the model would even then still offer excellent value, because it would give patent protection in a multitude of EU member states at a very attractive cost.
The patent trolls would certainly love it, but again, why assume this can ever happen? Why suppose an inevitability? The UPC is about as dead as the EU Patent or Community Patent, which several years ago we were told were inevitable and only a matter of time. Remember Charlie McCreevy‘s and Michel Barnier‘s lobbying for this? The latter, incidentally, became the key person in Brexit negotiations.
At the end of last week IAM remarked on this Brexit update, asking, “lawyers, would this have UPC implications?”
“Depends which lawyers one asks,” I replied. Patent lawyers (especially those who invested in UPC) are not David Allen Green, who writes a lot about Brexit these days (one of the most prominent commentators on the subject in the UK). Incidentally, David Allen Green is the person who defended me from several vicious attacks from the EPO.
“Theresa May,” told us a reader last night, “said at the Conservative Party Conference that after Brexit the UK will be “a fully-independent, sovereign country” that will no longer be in the “jurisdiction of the European Court of Justice”, Bang goes the UPC then!”
“Anybody claiming from now on that UK should ratify the UPC soon should loose their illusions,” wrote another person last night [1, 2]. To quote the full comment:
It has just become known that procedure according to Art 50 will be started fore the end of March 2017.
The European communities act of 1972 will be repelled and a Great Repeal Bill will be decided.
It becomes thus clear that the Brexit is on its way. Any ratification before this date has been transferred to dream world…..
Anybody claiming from now on that UK should ratify the UPC soon should have lost its illusions; it would better think how UPC could progress without UK.
Battistelli is a chronic liar (with a track record to prove it). He said the UPC would be in effect this year (he said this as recently as last year) and he keeps changing his story every time he’s caught in a lie. Don’t believe anything that Battistelli and Team UPC say about the unitary patent system, or whatever they will choose to call next year. █
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Behind the costumes and the façade of professionalism
Summary: Rudeness and lack of integrity a growing problem that the outside world rarely takes a look at or gets a glimpse of
EVERY now and then we highlight the bad behaviour of patent law firms, including misconduct, malpractice and sometimes even fraud (recently at the USPTO and allegedly at the EPO also).
These people try come across as honest professionals, but the inner child sometimes comes out and then throws a tantrum that somehow becomes public. They also mislead clients using cherry-picked (selection bias) propaganda that’s intended to attract business irrespective of need or desire (more on that later today).
“These people try come across as honest professionals, but the inner child sometimes comes out and then throws a tantrum that somehow becomes public.”Watchtroll, who insults PTAB (calling them "impotent") (and much more), writes about a legal firm/applicant that “call[ed] the examiner and the examiner’s supervisor a “f**king a**hole.”” As if Watchtroll is in a position to lecture people about manners….
Remember what Andrew Schroeder said to examiners? If not, revisit this older story.
There is another new story in which “the judge “sadly but without hesitation” publicly reprimanding two lawyers.” These are the few cases that we know about; most don’t get reported at all (or only reportedly internally).
The reality inside patent law firms (or patent offices) isn’t what’s publicly advertised. Leaks from the EPO have already demonstrated how bad things can become. █
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So much for patent quality claims…
Being better than the USPTO is not the same as having acceptable patent quality (US 6368227 B1)
Summary: In spite of Battistelli’s claims (lies) about patent quality under his watch, reality suggests that so-called ‘production’ is simply rushed issuance of invalid patents (one step away from rubberstamping, in order to meet unreasonable, imposed-from-the-top targets)
PATENT QUALITY at the EPO has sunk pretty low, as insiders tell us and staff representatives say as well (they have this new paper about it
[PDF] — a paper which somebody leaked to us). It seems to be the consensus inside the EPO that patent quality is far from what it used to be; it’s only EPO management that keeps lying about it and the above was published internally because “the President is advertising our quality all over the world.” Yes, the liar in chief is now making a career out of lying about everything. He calls himself “President” but acts like the world’s worst boss, whose words are less than worthless. Some believe that he was intended to morph the EPO into the French model, which would basically render all the examiners redundant. The worst case scenario is, the guy is a ‘liquidator’ of the EPO. He’s put in charge to destroy it.
“The analysis is particularly relevant now that the President is advertising our quality all over the world.”
–Internal documentA few days ago we saw this article in German about patent scope at the EPO. “European Patent Office discussed the objection of doctors in the world against the patent for the hepatitis C drug Solvaldi / decision on 5 October expected,” says the automated translation. Also recall those letters regarding patents against cancer patients. If someone can prepare a translation of this article, that would be appreciated. Mathieu Klos from Juve has also just published an article in German for which we could use a translation. It’s Battistelli talking points in ‘interview’ form and the summary is automatically being translated as: “The European Patent Office has reformed its Boards of Appeal in July. Until the beginning of 2017, the reform must be implemented. For a new Board President must be found. Critics complain that the reform does not bring enough independence for the EPO-court. JUVE interview EPO President Battistelli Beno it take a position and explains why the renewal fees for the EU patent reduce not necessarily when the UK, the EU and thus the new European patent system should leave.”
We could use an English translation, so if someone can provide an outline or a complete translation, that would be great. Automated translations just aren’t so reliable and there is room for misunderstanding that might impact our credibility.
Without the Boards of Appeal we can expect patent quality to decline even further without that decline being publicly acknowledged. This may be one plausible explanation for Battistelli’s attack on these boards. An EPO mouthpiece has this new article which speaks about one particular aspect of European patents. It says: “The grounds of opposition are set out in Article 100 EPC. To paraphrase, these include that the subject-matter of the European patent is not patentable under Articles 52 to 57 (novelty, inventive step, industrial application, specific exclusions and non-inventions), that the patent is insufficiently disclosed and that the subject-matter of the patent extends beyond the content of the application as filed. The only substantive pre-grant criteria for patentability which is not also a ground for opposition is that of Article 84 EPC (that the claims shall be clear, concise and be supported by the description).”
“Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls.”Under Battistelli, as we have shown here before, oppositions are being suppressed (made more expensive, time being prohibitive, and so on), so obviously the quality of patents will decline, without this decline even being detectable.
Why does this matter? Two main reasons:
- Businesses are willing to pay the EPO a lot of money in order to properly check if their patent, once scrutinised in a court, will be upheld, in which case all the pricey legal proceedings will bear fruit and monetary compensation for patent infringement will be granted
- Small businesses are afraid of being falsely accused of patent infringement (i.e. attacked by a patent that should never have been granted in the first place) as to them it can be a matter of life or death (bankruptcy)
The latter case is more relevant to us because it alludes to the plea of the vulnerable and the powerless, whereas in many cases (1) above is applicable to large companies that stockpile or hoard patents by the thousands. Legal fees are very high (too expensive for most, who would rather settle quickly) and even if the accused is found not guilty (e.g. of patent violation, as the patent is ruled invalid) the financial cost is enormous and can never be redeemed from the accuser/plaintiff (except in rare cases like NewEgg’s). Here is a new article from Finnegan, Henderson, Farabow, Garrett & Dunner LLP. The headline is “EPO: Unjustified Threats Bill; What is it?” (the EPO did it to me, misusing defamation law) and here is what it says:
Provisions exist in the United Kingdom to prevent unjustified threats of legal action relating to infringement of patents, designs and trademarks. The provisions were originally conceived with the intention of stopping the holder of an IP right from damaging a person’s business by threatening their customers or distributors with an infringement action of the IP right. The current provisions, however, are inconsistent across different forms of intellectual property and are worded such that an innocuous communication from an IP rights holder may be interpreted as an actionable threat. This results in an increased risk of litigation proceedings between the parties. This is contrary to the overriding principle enshrined in the UK’s Civil Procedure Rules, which encourage pre-action correspondence and negotiation in order to ensure that disputes are dealt with at proportionate cost.
The UK’s government issued a draft Bill setting out proposals to address some of these issues. The Intellectual Property (Unjustified Threats) Bill 2016 would update legislation relating to unjustified threats to provide greater consistency and clarity.
For example, the Bill proposes positive definitions for “permitted communications” to provide a safe harbor to allow rights holders to communicate with potential infringers, without running the risk of a threats action. In this way, parties should find it easier to comply with the Civil Procedure Rules by exchanging information prior to the start of any litigation.
Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls. See what is going on in the US, where the USPTO blessed almost every application. Lots of litigation and now a lot of invalidations (at a very high cost to the accused). █
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The liar has quit pretending to even be capable of handling the truth
Source (original): Rospatent
Summary: The attacks on staff of the EPO carry on, with brainwash sessions meticulously scheduled to ensure that Administrative Council delegates are just their master’s voice, or the voice of the person whom they are in principle supposed to oversee
LATE on a Friday (one week ago) the next stage/phase of new EPO propaganda began, with the release of 3 documents commissioned to help Battistelli lie to the Administrative Council and the entire world. A fortnight from now another stage/phase will begin, namely a so-called 'conference', probably decorated or accompanied by shallow media coverage (planted puff pieces*). EPO management does a good job demonstrating that it’s not only a chronic liar but also a manipulator of the media, at huge expense to the EPO (other than growing reputational cost).
SUEPO sent the following letter to Battistelli earlier this week, with a copy sent to the Delegations of the Administrative Council:
27 September 2016
su16116cl – 4.6
“Social Conference” of 11 October 2016
Dear Mr Battistelli,
We refer to the letter addressed to you on 20.09.2016 from SUEPO The Hague on the subject of the Social Conference, which remains unanswered.
SUEPO, who represents about half of the EPO workforce, has not been invited.
Over the past two and half years you have consistently threatened and/or heavily sanctioned the majority of the elected officials of a Union you called in public a “mafia like organisation”. In the circumstances, we will obviously not attend voluntarily. (If you want to oblige any of us to attend as “members of Staff Committees”, we would only participate under duress)
We truly regret seeing that, rather than fostering social dialogue by respecting the terms of the March resolution of the Administrative Council (CA/26/16), you have chosen to continue persecuting SUEPO and its elected officials, most recently in The Hague, cf. minutes of the Board 28 meeting of 8 September.
We also regret that you do not seem to take seriously the requirements of a bona-fide social conference. If its aim is to launch a program to restore social peace, it is inconsistent for you to refuse to discuss the results of the Technologia survey, or to consider our counterproposal for a framework agreement between the EPO and SUEPO.
Yesterday morning we published leaked Board 28 documents. As we noted at the end, these demonstrate that the Board (i.e. Kongstad et al) are ever more complicit in Battistelli’s abuses. Team Battistelli, we should remind readers, is said to be buying votes or buying (one might say “bribing”) the delegates. As one new comment puts it, the “AC representatives [delegates are] being showered with “gifts” by the very body that they are supposed to oversee” (source).
Here is the comment in full:
AC representatives being showered with “gifts” by the very body that they are supposed to oversee? If this is true, and if there is concrete proof of the same, would that not mean that the representatives concerned would need to declare a conflict of interest and step aside?
Oh, I forgot. There is no one to call them to account. And there would be no one to replace the representatives if they did step aside. Hardly a model of good governance, though. One might even go as far as to say that it is a model of governance that could easily be corrupted if undesirable types managed to secure powerful positions within the Organisation. God forbid that this ever happens!
As the Administrative Council and the Board (overlapping entities) have become ever more complicit in Battistelli’s abuses and the likely destruction of the EPO (for their short-term personal gain), we are planning to expose some unpleasant truths about the Administrative Council next week. █
* Managing IP, an EPO mouthpiece nowadays, was planning to help Battistelli lie about the social climate at the end of this month, using a placement in the form of an ‘interview’ with Battistelli (part 2), but this has not happened and they failed to get a response from AMBA, which is understandably scared. Yesterday they began speaking and spreading the falsehoods about the EPO's crushing of the boards (under the guise of “independence”). Haar is somewhat of a suburb quite some distance away, so saying that “Boards will remain in Munich” is a lie. To quote further: “In addition to predictable concerns among users of the EPO as regards preservation of quality and independence of appeal decisions, the EPO’s ambitions with regard to cost coverage are seen as problematic by many due to the future increase of the appeal fee. A four- or five-fold increase of the appeal fee may well prove prohibitive to appeals, even in respect of clearly flawed first-instance decisions, or may put a heavy economic burden on parties to proceedings in respect of cases which are subject to multiple appeals in respect of the same patent or patent application.” We should remind readers that payments and working conditions are eroding, motivating what’s left of staff at the Boards to simply leave, giving the impression that these Boards are dying naturally on their own.
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Original: Business Europe on UPC
[PDF] (we wrote about Business Europe, which is a front group, several times before [1, 2, 3, 4, 5])
Summary: A quick look at some of the latest deception which is intended to bamboozle European politicians and have them play along with the unitary [sic] patent for private interests of the super-rich
THE EPO and Team UPC, along with their largest clients, try to take over Europe and rewrite the law.
Kingsley Egbuonu from MIP (close to the EPO) continues his Unitary Patent and UPC “progress [sic] report”, this time noting that “EU Ministers reiterate support for the system; legal opinion on UK’s participation; The Netherlands ratifies UPC Agreement; legislative process for ratification underway in Italy; new Italian course added to list of UPC representation qualifications for European Patent Attorneys; official timetable for launch of UPC may be revised; Unitary Patent system ready and UPC preparations to continue” (all sounds incredibly optimistic).
“The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe).”Judging by this “progress [sic] report,” one might be led to believe that the UPC is inevitable and only a matter of time; but it’s far, far from it. “We understand,” Egbuonu notes below, that the “UK IP Minister Baroness Neville-Rolfe did not make any statement on the UK’s position, considering the UK government is still deliberating over Brexit strategy, rather she commended the preparatory work done so far.”
The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe). Everyone seems to know it except Team UPC, which invested so much in this change (de facto theft of democracy) that all resources are now being thrown at lobbying. Take Bristows and its self-nuking statements for instance. Bristows is still lobbying to have its talking points interjected into ‘news’ papers which the EPO paid for PR. Here they are saying: “Milan challenges London for patent court – Our Alan Johnson comments on the @FT https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4 … pic.twitter.com/DyqpSJfFBA” (FT was paid by the EPO for this kind of bias).
It seems as though the UPC will be officially dead next month, but Team UPC is working super-hard at the moment. It includes ‘hijacking’ the media for their own selfish purposes. Bristows is being amplified (almost the entire piece is Bristows) by WIPR and an article composed by Bristows staff keeps getting referenced as ‘proof’ that “European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting” (utterly misleading headline).
“Usual suspects sent letters to lobby for UPC, wait until we send our letters too.”
–Benjamin HenrionWhat Bristows means by “European business” is just “Business Europe”, which is a misnomer. Here we have Bristows lobbying for itself and meddling. To quote: “Views on UPC expressed ahead of today’s Competitiveness Council meeting.”
Competitiveness in Europe would require demolishing the UPC, but international monopolies and oligopolies want the opposite of competitiveness; they just want protectionism to cement their market position and marginalise competition (e.g. by means of patent lawsuits or threat thereof).
Looking at some of the latest junk from Bristows (relying on front groups and generalising based on them), one can see dissent in various other new comments about the UPC; these comments are not sharing the sentiments of Bristows’ propaganda (about 5 more such comments yesterday). One of them said that selective “letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry.” Writing about “Business Europe” (Big Business Europe and Multinationals with Branches in Europe), here is the complete comment:
That all firms having been heavily involved in the preparations of the UPC want it to come alive is understandable, be it only because of the time and efforts invested in it. That their might not be a return on investment is bitter for all of those them. But c’est la vie.
The letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry. Did you expect that Air Liquide would be against the UPC?
On the other hand, we were always told that the UPC is primarily there for the benefit of the SMEs.
I do not see any federation of SMEs, but the French CGPME having participated in such a plea. The CGPME being one among the plenty members of the UJUB, even if it had a restrictive opinion, it would be overthrown by all the other members.
I get the feeling that lots of people have lost track of the political reality. How can a sensible person advocate immediate ratification by the UK of the UPC Agreement when the terms of the Brexit are not even known? There might be ways for UK to continue its participation, but this means accepting EU law. I dare think what the EuCJ will have to say if UK participates to the UPC after Brexit and does not fully accept EU law supremacy. But then why the Brexit?
Why on earth push for something which nobody knows how it will end up? That UK participation would be good is certain, but as somebody in charge in the UK said Brexit means Brexit.
It is clear that if the UPC does not enter into force because of the lacking ratification of the UK, it will be delayed for a while. And then the can of worms will be opened again. But that is a reality which is tangible and which should be accepted.
Whether we like it or not, it is time to look at reality and not hope for something which has been lost.
The “Big Business Europe UPC letter,” Benjamin Henrion remarked, is “not supported by CEOE, the Confederation of Employers and Industries of Spain” (Spain is generally against the UPC, to its credit, but language has a lot to do with this opposition). “Usual suspects,” he added, “sent letters to lobby for UPC, wait until we send our letters too.” He told me that he was unable to find any video stream/access to the proceedings (the perception of transparency) and later added: “Is there any video recordings of EU Ministers Council meeting of today?”
We have seen nothing of that sort yet. Team UPC has no sense of shame and no respect for democracy at all. Sometimes it feels like politicians are on the same bandwagon.
Here is a timely new comment about UPC (found this afternoon):
That’s the problem with the UPC, it is not counter-balanced by an elected parliament, such as the European Parliament.
It is an undemocratic monster.
If the UK is out, the bare minimum would be to reintroduce art6 and art8.
It’s not just an “undemocratic monster” but an antidemocratic monster. It must be scuttled. █
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Also see: European Digital SME Alliance: Unified Patent Court (UPC) “Unconstitutional”, Harms SMEs, Brings Software Patents to Europe, “Should be Based on EU Law and Not on an International Agreement.”
Summary: A quick look at the growing bulk of UPC lobbying (by the legal firms which stand to benefit from it) ahead of tomorrow’s European Council meeting which is expected to discuss a unitary patent system
THE EPO has been paying various media companies, including British giants that continue to produce UPC propaganda ahead of the big day tomorrow (embedding talking points from Team UPC). This is beyond a disgrace and should be a very major scandal, but somehow the EPO managed to paralyse the media, including so-called ‘IP’ ‘media’ (trying to play nice with the EPO by simply being silent when catastrophic mistakes are being made). FTI Consulting much?
Reluctantly, as we prefer to make allies rather than foes, earlier today we published a rant about IP Kat, which had become somewhat of a Bristows platform for Bristows' shameless lobbying for the UPC. This afternoon, much to our regret, WIPR did something similar. An article titled “European Council to discuss unitary patent system” got published and it’s little more than a copy-paste job of Bristows talking points. Here is a fragment:
As the UPC is listed as “any other business” for this week’s meeting, there is not likely to be any substantive discussion, according to law firm Bristows.
Alan Johnson, partner at Bristows, told WIPR: “Everyone has to accept that the result of the UK referendum will delay the commencement of the UPC—and not just by a few months. It is unrealistic politically to expect the UK to ratify as if the vote had never happened, but also without some real certainty that the UK can continue to participate post-Brexit.
“The main question for me is whether the other states involved will be patient and try to work with the UK to find a solution which would allow continued UK participation. It’s not enough, no matter how well-meaning, just to offer words of reassurance that a solution will be worked out in the future if we sign up now.”
He added: “It’s better to get on immediately with the work required to put a modified system together. This is not starting again, but a question of working out a new legal arrangement which the Court of Justice of the European Union will find lawful. If the UK knows exactly what it needs to sign up to, and has the certainty that it will be lawful, it can then take a decision.”
Johnson continued: “I really hope the other states will wait for the UK and work toward this, but if they won’t, that is their choice and there is probably not much the UK can do to stop them. And it should be remembered that if the other states do go down this route, they still have work to do to reach a replacement agreement excluding the UK, including resolving the political question of where the London branch of the central division should go.
“Plus they would have to go through a new round of ratifications, and I can’t see that being a particularly quick process either.”
Hey, who needs the media anymore? Just paste a link to Bristows’ own Web site and be done with it. WIPR should know (and probably does know) that Bristows isn’t a mere observer when it comes to the UPC; it is still interjecting itself into the media for agenda and it’s not alone. Bird & Bird do this as well and this afternoon we found another example. Some patent firms are still fantasising about the UPC that will probably never become a reality (ever!). Well, even from IAM comes a response to this tweet, saying “Well, it’s not likely to be London anymore!”
So clearly, as before, IAM does not believe the UK will ratify anything related to this. Why does Bristows keep fighting? Because it bet the farm on it. It even rebranded accordingly, with its silly Bristows UPC blog (as if it’s trying to ‘own’ the UPC).
In responses to the previous Bristows lobbying, which got published yesterday, commenters are nowhere as optimistic as the Bristows lobby. Virtually all the comments are pessimistic. Here they are in full (so far). Here is the first comment:
Finally, people seem to be addressing the elephant in the room that so far seems to have been almost completely ignored by all interested parties including the EPO, CIPA, and big business: regardless of the pros and cons the current political reality in the UK is that the government will not sign the UK up to any system that requires the acceptance of the supremacy of EU law over UK law. The sooner this is accepted the better. Then people can start working on the practical reality of the situation, no matter how much they dislike that reality.
I don’t know whether you’ve noticed: nobody seems to know what the political realities are.
So far, the fat lady has not sung – and the thin lady is simply saying Brexit means Brexit and telling the three Brexiteers to keep schtum.
The question of who can trigger Article 50 is a live issue before the UK courts.
Uncertainty reigns and chaos beckons.
Fine, but here it is not supremacy of EU law. It is supremacy of an international agreement over national law, which is quite widely accepted.
Any international agreement, be it on free trade or on the privileges of diplomats, usually has supremacy over national law.
You may well be right on the current political reality, but it is besides the point.
“I think that the UPCA will never enter into force,” one person added, “unless of course the UK decides to remain.” Well, it seems very unlikely at this point and there’s not much time left to decide, either.
Legally speaking, it is absolutely impossible for a non-EU UK to stay in the UPCA (see e.g. art. 1), unless the agreement is amended with an unanimous vote (art. 87.3).
Since the UPCA has been already signed by 26 EU States and ratified by 11 States, I think that the UPCA will never enter into force, unless of course the UK decides to remain.
This is why we’re likely to see nothing emanating from this:
This is from Counsel’s opinion on the UK joining the UPC:
“The Unitary Patent Court is required to “apply Union law in its entirety and … respect its primacy” (Article 20). Union law must therefore be applied in preference to the other sources of law mentioned in Article 24.”
Article 24 specifies national law as an other source of law. That is, the UPCA explicitly requires acceptance of the supremacy of EU law over UK law. The current government may not be pressing full-steam ahead with Brexit at the moment but they certainly aren’t going to ratify any agreement, international or otherwise, that requires this.
And finally (for now):
It is not just any international agreement. It is signing up to an agreement, the rules of which are outwith your control. If the UK does leave the EU, eventually, it will effectively be an observer who recognises and implements the EU laws. That would place it in the position of EPC validation states such as Morocco but still having to participate as a court. That isn’t run of the mill.
In the next 24 hours we should expect a lot more lobbying, timed strategically for tomorrow’s meeting. Bristows has already expressed intent to publish some more of their tripe today (at IP Kat). Don’t let them steal democracy for their own selfish motivations (profit through increased litigation that would be ruinous to SMEs). █
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Not news; mostly agenda in disguise, courtesy of Battistelli’s “useful idiots” and collaborators
Summary: When does an IP (or patent) blog become little more than an aggregation of interest groups and self-serving patent law firms, whose agenda overlaps that of Team Battistelli?
THE EPO no longer comes under scrutiny from IP Kat, as we noted late last night. But to make matters worse, when it comes to UPC matters in particular, IP Kat became somewhat of an advocacy platform. They hopefully, at the very least, realise this and can acknowledge this.
“…when it comes to UPC matters in particular, IP Kat became somewhat of an advocacy platform.”It is no secret that the UPC would harm SMEs; their representative groups even say so explicitly. But they’re looked down upon by patronising self-serving elements which claim to speak about what’s good for them, if not falsely speak on ‘their behalf’. This is outrageous.
Part of the problem is Team UPC, which includes Bristows that’s a major lobbyist for the UPC, even saying something to that effect (very blatant disregard for democracy). Annsley Merelle Ward from Bristows has been exploiting IP Kat for a weekly (if not more frequent) UPC lobby. Yesterday was no exception. Her headline is a lie, the ‘article’ is just more lobbying with selective evidence, and this was promoted in Twitter yesterday.
“The countdown has seemingly begun again,” she wrote, “but the stakes seem to be even higher. The IPKat will be back tomorrow to report on the Competitiveness Council’s session tomorrow and future debates on this topic.”
“Has IP Kat become UPC Kat? Or Bristows Kat?”So now it’s a daily lobbying spiel? Has IP Kat become UPC Kat? Or Bristows Kat? When a writer is using the blog for her employer (she’s not the only writer there from Team UPC) we can’t help but feel that we’re seeing very low journalistic standards and basically alignment with at least a certain element at IP Kat with Team Battistelli.
Bristows lobbying for the UPC is not limited to IP Kat. We are seeing more of the latest Milan talking points in Bristows’ own blog. It is evident that this firm continues to stomp over British and European democracy with this abomination known as UPC, noting in Twitter that “UPC EPLC Rules amended to include additional Italian qualification, by @Liz_Cohen_” (they’re pushing in this direction, essentially meddling in politics). In another new post they are quoting other members of Team UPC, i.e. the echo chamber, arguing that “DAV says UK could still participate in the UPC system after Brexit and ‘a quick decision of the UK is needed’” (again, they’re trying to rush British officials into an unacceptable trap, using panic and trauma).
We have come to expect this dirty playbook from Bristows, but why has IP Kat been dragged down like this? Why does IP Kat keep pushing for the UPC under the guise of news while no longer criticising the EPO? Here is a recent example where they say “To be, or not to be?”
“They just keep renaming and repurposing the same garbage, dodging the negative publicity (from the press and politicians, not to mention public interest/advocacy groups such as FFII).”Well, it’s clear that the UPC cannot happen in the UK after the Brexit vote. Why even make it seem like a probability? “Post #Brexit everyone is lining up their bargaining chips,” one member of the patent microcosm wrote the other day. “the UPC is just one of those.” (reporting from a CIPA event)
The UPC is little more than a conspiracy of patent law firms trying to steal democracy and then pocket European companies’ money. The EPO helps them for obvious reasons and the public is never being consulted at all. This is the kind of behaviour which motivated Brits to vote for Brexit in the first place. I have personally written about the UPC (in previous incarnations) for nearly a decade; I’m not unfamiliar with it. They just keep renaming and repurposing the same garbage, dodging the negative publicity (from the press and politicians, not to mention public interest/advocacy groups such as FFII).
“To say [the UPC can] “take years to build” is optimistic,” I told Bastian Best last night, as “my bet is, it’ll never happen, just be rebranded, repackaged” (remember EU Patent, Community Patent and other names).
“The UPC is little more than a conspiracy of patent law firms trying to steal democracy and then pocket European companies’ money.”WIPR‘s David Brooke, in the mean time, writes about “Opportunities after Brexit,” having just published this article. Team UPC must recognise that Brexit was the winning side (I was against it by the way) and that UPC won’t happen; neither in the UK nor in the rest of Europe (Spain for sure). We’re disappointed to see what IP Kat has turned into quite recently. When you know you’re misleading people and people call you out on it, why carry on? It’s an exercise in futility when one writes for one’s greed and self interest; or whenever speaking ‘on behalf’ of the public, hoping that nobody will pay attention or reject/refuse the obvious deception. When the only criticism of the UPC can be found in IP Kat comments rather than in IP Kat articles you know someone is suppressing one side of the argument (the side which represents the interests of more than 99% of the European public).
Team UPC are very, very sneaky. They pretend things will happen even before they happen (and they never happen). Remember those UK job advertisements for the UPC? How did that work out for applicants? █
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Remember what they did right before Brexit?
Summary: How the media, including the Financial Times, has been used (and even paid!) by the EPO in exchange for self-serving (to the EPO) messages and articles
THE EPO gives over a million Euros per year to a US-based and rather notorious PR firm. The EPO is essentially corrupting the European media at the expense of EPO budget, i.e. taxpayers and/or fee payers.
A very core part (if not flag bearer) of Team UPC, Bird & Bird, gets a platform or gets embedded in a new article (behind paywall) and then brags about it by saying: “Our @twobirdsIP partner, Rob Williams, speaks to the @FT about the effect of Brexit on the Unitary Patent Court” (“speaks to” means it’s a puff piece in the form of an interview, like those puff pieces that Managing IP has been doing with Battistelli, after prefiltering questions based on what some other journalists told us the EPO likes to do — a form of sanitisation).
The Financial Times was paid (one might even say bribed) by the EPO for UPC puff pieces several months ago, with a huge budget at Battistelli's disposal derived or extracted for lobbying purposes. The EPO gave money to media companies including the Financial Times and it even did this at a strategic time, almost certainly in order to influence the British referendum. Political meddling from such an institution should, in its own right, be a major scandal.
Regarding the piece itself (behind a paywall, so we must go by clues), based on the headline it’s once again the Milan fantasies, pretending that Milan can magically become London. It’s utter nonsense.
A more realistic take on the UPC came today from Dr. Glyn Moody. Unfortunately, his main citation points to CIPA, which has been working closely with the EPO on this (to undermine/steal democracy). Here is a portion of his article, which links to IP Kat:
It will still be possible for the UK to participate in the pan-EU Unified Patent Court (UPC) system after Brexit, according to a new legal opinion, but only if the UK is willing to “submit itself to the supremacy of EU law in the field of patent disputes.” Once established, the UPC will rule on cases involving unitary patents, which proponents say will reduce the costs of using and litigating patents in the EU.
Before the Brexit referendum, the UK was one of the main supporters of the idea of setting up the UPC. The UK government has already signed a lease for the London section of the Central Division and the UK Local Division of the new court system. Whether or not it can still participate in the UPC is therefore a crucial question.
A post on the IPKat blog explains that the legal opinion was put together for the Chartered Institute of Patent Attorneys (CIPA). The institute has been “lobbying for positive participation in the UPC after putting in so much work in advance of preparing the system,” and therefore is keen for the UK to remain a part of the UPC system even post-Brexit.
Benjamin Henrion already told him, “too bad you did not mention Stjerna paper. And Council meeting in 2 days.”
Based on Bristows of Team UPC (update today): “The UPC Preparatory Committee is meeting on 10 October 2016 in Paris. Regarding the Competitiveness Council, as the UPC is an ‘AOB’ item for this week’s meeting there is not likely to be any substantive discussion; the Council’s next meeting is on 28/29 November 2016.”
The “EU Council [is] to meet this Thursday, 29 September to discuss UPC and unitary patent,” they noted separately. As a reminder, Bristows of Team UPC is scheming to undermine both British and EU democracy. All it cares about are its own selfish interests. More patent litigation would mean more business for Bristows and its ilk (companies like Bird & Bird)
Here, incidentally, is a person in favour of the UPC saying that the UK should not ratify and explains why. The following comment was published today (“Meldrew” seems to be a British patent attorney):
I agree with Meldrew that it is better to be in the system than out – but otherwise disagree. Ratifying now creates problems we do not currently have (and we have plenty as it is) – it could lead to the UPC and UP commencing when it is uncertain whether the UK can or will remain in the project. If it can’t, but the UK has ratified in the meantime and the system commences, the situation for UPs covering the UK, the existence and locations of the UK local division and central division branch, the position of the UK judges and the enforceability of UPC judgments handed down pre Brexit are all unclear. None of these are sensible uncertainties to create in the hope that it will all be sorted out through some pragmatic political discussion. Nor do I believe the remaining EU member states will somehow reward the UK for being neighbourly in allowing the UPC to commence without delay, or punish us for not doing so – it is likely to be an irrelevance in the overall negotiations.
This doesn’t even touch on whether ratification now of what is a treaty between EU member states (even if technically not an EU instrument), which requires recognising the supremacy of EU law (in general, not expressly limited to patent law), is politically possible. It is impossible in my view to reconcile ratification with the referendum vote (which went the wrong way, as far as I am concerned), at least until the Brexit terms are known and agreed (and are such that it is politically consistent to ratify).
I am a realist. And sadly, the pragmatic – and sensible – thing to do is simply not to ratify, then wrap the whole UP/UPC/UK discussion in with general Brexit negotiations. This of course means delay since it is difficult to see how the remaining member states can actually proceed without the UK while it remains an EU member state and a signatory to the UPC Agreement. If we end up out, then the UPC can go ahead without the UK at that point, if the momentum remains. If we are in, so much the better, though I see dragons and lions in the path there.
And for what it’s worth, I am a supporter of the UPC/UP system even though I do not believe it to be quite as good or as “necessary for industry” as many have said it is.
Don’t be fooled by the UPC fantasies. The UPC isn’t happening, but Team UPC wants us to think otherwise so that guards are taken down and opposition reverts back to defeatism. █
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