Law firms are not being frank about the reality of inter partes reviews (IPRs), low success rates of software patents, and biases of courts in East Texas
Robert Kardashian of the Simpson murder case
Summary: New articles about the Patent Trial and Appeal Board (PTAB), the Court of Appeals for the Federal Circuit (CAFC), and the Eastern District of Texas (EDTX) which neglect to show the full picture, typically for promotional (marketing) purposes
THERE are many sayings about lawyers. Among them:
- “The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.”
- “I was half lawyer; I always noticed the loopholes.”
- “Lawyers were notorious for finding cases in the most unlikely places, especially ones with huge potential damagers awards.”
There are many more. The main point, however, is that whatever lawyers say should be taken with a grain of salt because lawyers work for lawyers (themselves) and sometimes they need to also give a sufficiently compelling impression that they work for clients.
“The main point, however, is that whatever lawyers say should be taken with a grain of salt because lawyers work for lawyers (themselves) and sometimes they need to also give a sufficiently compelling impression that they work for clients.”In the domain of patents, our view of lawyers was largely shaped by what we had read from them. When they don’t manage to embed themselves in articles from actual journalists they write nonsense in their own sites (or “blogs”), sometimes even in journals that target other lawyers and give tips, otherwise simply preach to the choir. There is an utter lack of honest, independent journalism about patent law, as we habitually point out.
Unified Patents, not to be mistaken for Unified Patent Court (UPC), has just taken on some trolls by challenging their patents, i.e. the only things that they have. We covered that earlier this year and patent maximalists now say that Unified Patents filed as many as 64 petitions against patents. The piece, from a law firm, is basically shameless self promotion, but in it there are some interesting numbers:
Petitioner Unified Patents, LLC filed an IPR petition challenging 29 claims of US Pat. No. 8,640,183 owned by Convergent Media Solutions, LLC. Unified’s numerous inter partes review (“IPR”) petitions rarely reach a final written decision, but here the Board issued such a decision and invalidated all of the remaining challenged claims. Unified Patents, LLC. v. Convergent Media Solutions, LLC, IPR2016-00047, Paper 23 (P.T.A.B. March 29, 2017).
To date, Unified has filed 64 IPR petitions, many of which are still pending or settled before a final decision. Unified typically challenges software and electrical patents, which have an aggregate institution rate of 71% (1931/2724). Unified’s institution rate is much lower at 49% (19/39). Even more notable is the fact that only 8.5% (4/47) of Unified’s completed, no longer pending, IPRs have reached a final written decision. This is much lower than the aggregate rate of 34% (1474/4345) for all patent IPRs.
What they are trying to say is, come to us, we’ll protect your patents from challenges. Sadly for them, however, petitions (IPRs) come from many more directions than Unified Patents and these are typically successful (patent/s invalidated).
“Unified Patents, not to be mistaken for Unified Patent Court (UPC), has just taken on some trolls by challenging their patents, i.e. the only things that they have.”Another law firm, Pearl Cohen Zedek Latzer Baratz LLP, has just published this piece that promotes the perception software patents have become more potent. Caleb Pollack and Kyle Auteri from this firm use their cherry-picking skills to paint a misleading picture. As one who has been following it closely, this is nonsensical cherry-picking of very old CAFC cases (as old as a year ago and most recent half a year ago). Here is the core argument:
While this is only one panel of three judges out of over 115 judges participating in ex-parte appeals at the PTAB, and it is unclear if the PTAB is more inclined towards finding claims are patent eligible than examiners, it is clear that the chances of overcoming software related rejections have improved since the Federal Circuit decisions in Enfish, Bascom, and McRO, decided in May 12, 2016, June 27, 2016, and September 13, 2016, respectively.
If these law firms were more honest, they would acknowledge that never before, at least in recent decades, were patents on software so hard to defend in court (never mind lenient examination at USPTO).
“Some of the worst (meritless) patent cases go to East Texas and still, in spite of the low quality of patents, the judges rule for the plaintiff, even when the plaintiff makes nothing at all.”Last but not least, here is a new article about the likely fate of East Texas as ‘litigation central’ or ‘rocket docket’. Earlier this week and last week we wrote a great deal about it, but here is more:
On paper, Kraft v. TC Heartland is not a very exciting case. It’s a lawsuit involving artificial sweeteners and the plastic containers they come in. It’s not the kind of case one would expect to make it all the way to the US Supreme Court and have sweeping implications for the future of the US technology industry. But let’s back up.
Kraft makes a product called MiO, a liquid artificial sweetener it calls a “Liquid Water Enhancer.” TC Heartland, a limited-liability company based in Indiana, makes a similar product: the “Refreshe Fruit Punch Drink Enhancer.” Kraft sued TC Heartland in 2014, saying it infringed upon three patents related to the containers the products come in.
Clearly, the idea here is that patent trolls have some sort of advantage in East Texas. But what is it? Do juries in this court tend to lean toward the plaintiffs? That was a question Justice Anthony Kennedy put to Kraft’s lawyer, William Jay, during the arguments last Monday. He asked whether “generous jury verdicts enter into this, or is that something we shouldn’t think about?”
The courts and the district actually advertise this bias. Is this not any more obvious? Some of the worst (meritless) patent cases go to East Texas and still, in spite of the low quality of patents, the judges rule for the plaintiff, even when the plaintiff makes nothing at all. █
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Team UPC firms inside IP Kat are doing marketing (for their employers)
Summary: For the third time in less than a week, IP Kat, composed by law firms that stand to gain from the UPC (litigation galore), tries to compel British politicians to ratify and allow devastation to British businesses
THE EPO, in our humble assessment, is actually at risk from the UPC; examiners in particular (not just boards) may be made redundant by it, for reasons we explained twice in the past week. Even EPO insiders — albeit not all of them — agree with us on that. UPC ‘reforms’ aren’t just about a bunch of courts; it’s a systemic overhaul that warps Europe into 'litigation central' at the expense of examinations (judges and juries doing what examiners would otherwise do, at a lower expense to defendants).
“UPC ‘reforms’ aren’t just about a bunch of courts; it’s a systemic overhaul that warps Europe into ‘litigation central’ at the expense of examinations (judges and juries doing what examiners would otherwise do, at a lower expense to defendants).”Thankfully, at least for us in the UK, time is running out for the UPC. Tokarski and Battistelli can say whatever they want (Battistelli just keeps lying about it), but ratification is anything but trivial and it is definitely not inevitable. Today we learned about plans to initiate a demonstration against it, after a petition attracted many signatures, including dozens from CEOs. According to this pro-UPC blog, in the UK “necessary ratification must take place before the next Competitiveness Council meeting on 29th May.”
But with Brexit uncertainties it’s anything but possible/feasible. We don’t expect that to happen. Here is the relevant bit:
Mr Tokarsky explained that everything is ready at technical level. However participating member states need to ratify the Protocol on the provisional application of the Agreement on the Unified Patent Court. Mr Tokarsky particularly insisted for the states that already have parliamentary approval to actually ratify the Protocol. He also highlighted that the necessary ratification must take place before the next Competitiveness Council meeting on 29th May. Indeed the UPC requires a minimum of six months to get ready and become operational.
We can be sure that Team UPC will kick into gear and make it seem both possible and desirable to the UK. When they speak of the “UK” they speak only about their employer, typically a law firm that profits from litigation.
“CJEU is a very big barrier here.”Luke McDonagh has tweeted, “UK can participate in #UPC post-Brexit, but will it? What role for CJEU? Darren Smyth gives his informed view…”
Well, for the second time in about a week, Mr. Smyth, having promoted this beast (in UPC echo chamber/lobbying events), does more lobbying at IP Kat. Rhetorical question as headline? Check.
He quotes this from the highest authority about the CJEU in the UK: “Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation.”
“…after spending years wheeling this beastly Trojan horse and publishing bogus job advertisements it would leave them looking like crooks and traitors.”He then repeats a statement from Lucy, who is no longer in her job (she lasted only several months before vanishing).
CJEU is a very big barrier here. David Davis is repeatedly being quoted/cited as saying that the UK would not be subjected to ‘governance’ by CJEU, so that’s an immediate deal-breaking statement/stance for the UPC. Should Team UPC not lay down its weapons and simply acknowledge that it’s over? No, after spending years wheeling this beastly Trojan horse and publishing bogus job advertisements it would leave them looking like crooks and traitors. So instead they try to make their own delusional prophecy come true.
“Saving us the effort, readers of the blog have already beaten us to it with rebuttals.”We are sad to see IP Kat repeatedly being exploited for this kind of lobbying. Battistelli must be very proud of IP Kat these days. His sanctions against IP Kat changed its tune and now we’re being confronted with UPC puff pieces almost every week, sometimes several times per week.
Saving us the effort, readers of the blog have already beaten us to it with rebuttals. Smyth, for example, got caught resorting to that same old shameless spin. “I am massively impressed by the mental gymnastics from the author,” said one commenter. Here is the full comment:
I am massively impressed by the mental gymnastics from the author. I particularly enjoy the part where the sentence from the white paper is quoted:
“The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK.”
Then immediately reinterpreted (and rephrased) to meet the author’s preferred conclusion:
“What it has said is that domestic courts should not be bound by the CJEU.”
Unfortunately, this just doesn’t follow. Nowhere in the statement of the government does it limit the exception to the jurisdiction of the CJEU to “domestic courts”. Rather the statement is that “we will bring an end to the jurisdiction of the CJEU in the UK”. This statement simply isn’t compatible with UK membership of the UPC. Take the very simple example of a UK person or company infringing a unitary patent by actions that are only carried out in the UK. In that case the UK will still very much be under the jurisdiction of the CJEU.
Another comment spoke about CJEU:
That’s too narrow an interpretation. The quote says “… the jurisdiction of the CJEU in the UK”. That means the ability of the CJEU to apply law that has an effect on matters taking place in the UK. In making a decision on for example, a matter of infringement of a European patent in respect the UK, the UPC is absolutely acting as a domestic court and thus the CJEU is exercising jurisdiction in the UK. There is an inconsistency here and the more likely explanation is that the government is in a mess, not that it has a cunning plan.
Another noteworthy comment (not from Team UPC):
Despite the opinion from Gordon and Pascoe, it is still far from certain that the UK and remain in the UPC post-Brexit.
A lynchpin of the Gordon and Pascoe opinion is the conclusion in the following quote.
“If the UPC were truly part of the Union legal order, it would already be subject to these obligations without them needing to be spelled out in the Agreement. Whilst Article 1 of the UPCA and Article 71a of the Brussels Regulation designate the UPC as a “court common to a number of Member States”, we do not consider that such secondary legislation is capable of converting the UPC’s fundamental status as an international court into that of a court which is part of the national legal order“
However, I have serious doubts about the legitimacy of that conclusion.
The main focus of the CJEU’s Opinion 1/09 was upon the question of supremacy of EU law (and the mechanisms for ensuring that supremacy). The main mechanisms by which supremacy of EU law is enforced in a particular country are membership of the EU and the ability of national courts to make references to the CJEU.
The first of these mechanisms will of course no longer apply to the UK post-Brexit.
The trouble for Gordon and Pascoe is that, if their conclusion is correct, then the second mechanism will disappear as well.
Think about it: how could an “international court” refer questions to the CJEU if that court is not a court common to the EU Member States?
Remember that the ability to refer questions to the CJEU is restricted by Article 267 TFEU to “any court or tribunal of a Member State“.
If I am missing something, then I would be glad to hear what it is. Otherwise, it seems that the UK most definitely cannot participate in the UPC post-Brexit… unless, of course, no one is bothered about compliance of the UPC Agreement with EU law.
This point also provides an answer to Darren’s question regarding how frequently the UPC will refer questions to the CJEU. That is, the ability of UPC to refer questions to the CJEU presupposes that the UPC will be bound by the provisions of Article 267 TFEU. The upshot of this is that the UPC Court of Appeal will have no choice but to refer questions to the CJEU when the decision of the Court hinges upon a provision of EU legislation that has no clear and unambiguous interpretation.
I suspect that references will be very common indeed. This is primarily because I have not met anyone yet who can provide me with definitive answers as to how Article 5(3) of Regulation 1257/2012 will work in practice. To be frank, my view is that anyone who thinks that this will all be clear-cut has obviously not thought things through!
“Dear UK lawyers,” said the following comment, “the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with” (right on the money).
Here is the full comment:
The comment looks interesting and it looks at first sight, indeed quite convincing. The UPC not being a UK court, but an international court, UK can stay in the UPC after Brexit.
The contrary seems true for different reasons:
1) the UPC is strictly reserved to member states of the EU. There is not much which can be said more. Any attempt to change this , for instance by the Administrative Committee amending the UPCA, is doomed to fail as any possible amendments can only have the aim to bring the UPCA in line with an international treaty relating to patents or Union law. Not only the preamble makes reference to Union Law, but as well the Art. 5, 20, 21, 27,31, 32, 84 and 85 (the list does not pretend to be exhaustive) refer directly or indirectly to Union Law. And a non-EU member can participate? Sorry but the time for April’s fool jokes is over.
2) Even if for the sake of argument one could accept that the UPC is not a UK court, its decisions will have a direct impact in UK, once a judgement of the UPC is to be enforced in UK, or a judgement of the local court or the London section of the Central Division will have to be enforced, whether in UK or abroad. Once UK leaves the EU Brussels 1 will not any longer applicable to judgements of the UPC in UK. Up to now, there is nothing to give the impression that this point has been taken seriously by the proponents of the stay of the UK in the UPC post-Brexit.
3) The comparison between EP patents and the UP Patents is not convincing at all. The EPO grants patents, and stops there. The EPC does not say anything else, beside the fact that, in principle, the reasons for nullity in front of a court in a member state of the EPC are the same as the grounds of opposition. The aim of the EPC was never to go any further. The UPC deals with the fate of a patent granted, like presently any other court in a member state of the EPC.
4) That no patentee is obliged to use the UPC is OK as long as there is an opt out possibility, that is for at least 7 years, and then to a maximum of 14 years. After this time any EP patent be it with or without unitary effect will end before the UPC for all member states of the UPC, i.e. for all member states of the EU having ratified. This argument is very weak.
I cannot remember if it was in this blog or in another one, that there was talk of having the cake and eating it.
Dear UK lawyers, the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with. It is sad for you, but unavoidable and any contortions trying to be in with being in are in vain.
“Nice try to claim the UPC is an international court but it is an EU court,” said another comment about this lobbying effort.
Patentees in the Uk owuld only have the choice if the UK government gives it to them. Allowing one section of society to be under the jurisdiction of the EU seems contrary to the government position.
Aside from that, not all patentees are UK citizens so the UK surely cannot allow non-UK-resident patentees the right to obtain UK property rights that are not subject to the jurisdiction of the UK courts?
Nice try to claim the UPC is an international court but it is an EU court, which is why it is under the CJEU. We could try and get round many hurdles by creating ‘international bodies’ in this way, but I doubt it will wash. The EMA for example may be one such body we could do with not leaving.
And in response to that:
It is “under” the CJEU in the same way as the English courts and UK Supreme Court are at present. Are you suggesting that the English Court are EU courts even when deciding on national law. Do you consider the Miller Art 50 judgement to be the work of an “EU” court. Seems a strange catogorisation to me.
“The Brits have been painstakingly building this folly for many years,” said the following (yes, a lot of Team UPC is based in London), “and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening.”
Reading all of this reminds me of the final scene of “The Bridge On The River Kwai”.
The Brits have been painstakingly building this folly for many years and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening.
The last thing anyone needs is for the train to leave the station and make its way on to the bridge….
Here is a claim that CJEU is merely a “red herring both legally and politically.” But how is that so? The situation here is rather simple; can a court that does not even speak English tell a company in Britain (post-Brexit) what to do? That would make as much sense as a Chinese or a US court ordering an injunction inside the UK. Here is the full comment:
The CJEU’s role is mostly a red herring both legally and politically. The UPC clearly cant be issuing remedies to be enforced in EU countries that are contrary to EU law and the CJEU is there to prevent that. Unless an invention relates to the Biotech directive the CJEU will have very little influence on what happens can or cant be done in the UK.
The political angle is also a overplayed- Carswell’s early day motion didn’t get any other backers. What happens to the UK in the UPC will be wrapped up with the big Art 50 deal. When the Art 50 deal is completed -what happens to the UPC isn’t going to be a primary talking point with those that hate the EU.
Carswell is a Conservative who moved to UKIP and left UKIP (he is now an independent). Trying to cast anti-UPC as anti-EU is as dishonest as it gets. I, for example, am against the UPC for practical reasons and I am also pro-EU for practical reasons. One can cogently be both. A lot of UPC foes can say the same about themselves.
“I, for example, am against the UPC for practical reasons and I am also pro-EU for practical reasons.”The one point which is easier to agree on is, UPC will barely be on the agenda in Brexit negotiations. It will likely be abandoned or thrown/fall by the wayside, as much higher priorities exist. █
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Unified around the idea that UPC is desirable and inevitable (it's neither)
Summary: Outline of responses to two promotional articles about the UPC, courtesy of staff from firms that are propelling the UPC for self gain
“MERPEL” (a pseudonym of various people at IP Kat) no longer covers EPO scandals, which leaves more room for Team UPC to push its agenda that worryingly enough overlaps Battistelli’s agenda. It’s sad to see, but that’s what IP Kat recently became.
“For those who have not been paying attention, following the Article 50 news IP Kat published not one but two puff pieces about the UPC.”Yesterday we wrote about Bristows' latest nonsense about the UPC and MIP's latest 'marathon' of UPC reports which are all hinged on 4 words from an alleged (unnamed) “spokesperson” for UK-IPO. IP Kat readers are not stupid and ‘awkward’ questions like this one are being asked: “Would you mind letting the readers know the exact source of these “news”? Is the above based on an official statement by the UK IPO and if so, where can this be found?”
For those who have not been paying attention, following the Article 50 news IP Kat published not one but two puff pieces about the UPC. The articles attracted over a dozen comments and all the comments are negative, disagreeing as usual with the original posts. And rightly so. We have, for quite some time, complained about this and we happen to know that even some former ‘Kats’ are not entirely happy with this bias.
“In this post we wish to focus on rational responses rather than pure marketing from Team UPC.”What has the IP Kat been reduced to?
In this post we wish to focus on rational responses rather than pure marketing from Team UPC. Typically, in most sites, articles are a lot saner than the comments, but in IP Kat — at least as far as UPC goes — it’s exactly the opposite.
“The UPC is nothing more than a Trojan Horse coming to put European industry under pressure,” said this comment. Here is the full comment:
Who is taking whom for a ride?
If UK wants to kill the UPC, this is the best way to behave.
One thing is clear: the lobbying of some circles, not to say U.K. law firms shows that what reasonable people consider stupid and foolish, might nevertheless become true.
Which reasonable legal adviser can suggest to his client to go for the UP, when it is not sure what will be the fate of the UPC.
I am still waiting for somebody to explain in a clear and concise matter how UK can stay in the UP after Brexit, and how enforcement will take place in the U.K. or in the other states for a decision taken by a local court or the section of the central court in UK.
The UPC is nothing more than a Trojan Horse coming to put European industry under pressure. Remember the proportion of applications coming from EU member states at the EPO? At best a third! And how many SMEs among those?
It is time to stop the ongoing hypocrisy.
Later on the same person expanded a little further. Added elsewhere was this comment which said, “who will be the beneficiary of the UPC: the US, Japanese and Chinese companies.”
And patent trolls in particular. To quote:
One of the comments above made it clear who will be the beneficiary of the UPC: the US, Japanese and Chinese companies. Where is the benefit for European industries and especially European SMEs? Being generous, may be a good third comes from Europe. And where does the rest come from?
The problem with the judges is not only of procedural nature. Interpreting the EPC is also at stake. When one sees that how decisions of the the boards of appeal are superbly ignored by national courts (and vice versa), why should this change under the UPC? Remember that in the big countries there will be two national judges in a panel, hence conclusions are easy to draw. Any idea how to resolve the necessarily upcoming of conflicting case law between the BA and the UPC? May be by not just sending the BA to Haar, but in orbit, as once Mr Pedrick suggested to do for the search documentation…..
As for Max Drei, what he says is exactly confirming what I have just said. Let’s do it the British way, which is the only right one! And that should represent a unified legal system? Please do not abuse the credulity of the reader. And on top of it there are so many unresolved legal issues following the Brexit, that any legal adviser suggesting his client not to opt out should be struck of the list of qualified representatives be it before the EPO or the UPC. The only thing such a representative does is to insure that his purse is well filled and that is it.
Hypocrisy has to stop. The UPC is so laden with errors of conception, that the Brexit is the opportunity to see how thing could be made better, and really to the benefit of European industry and SMEs. Already now the share value of companies depends on the litigation started. Do we really want this in Europe?
The following person (probably an attorney) responds to the above allegation about “US, Japanese and Chinese companies.”
Observer, you suggest that pan-European benefits litigants from outside Europe more than domestic industry. The EU Registered Design Right was also supposed to help domestic industry against competitors from outside Europe. You know: nobody ever files for design registration outside their home country, that logic.
Yet my feeling is that EU Design Registrations are mainly used by non-European claimants against European defendants.
Here we go again?
Compare jurisdictions outside Europe: US, JP, CN. Who can deny that litigants in those jurisdictions go on enjoying huge “home advantage” by playing at home, in their own courts?
But this is why I cherish my European heritage. More fairness, and less nationalism and protectionism than in other jurisdictions. At least, in the recent past that is.
Saturday, 1 April 2017 at 17:
Then they spoke about Battistelli, hypothesising that we may “have here the secret agenda of the president of the EPO. Let everything go down the drain, so that the only place to litigate will be the UPC.” Rumours used to say that Battistelli would attempt to spearhead the UPC, too. A king for a decade? Two decades? More? Here is the comment:
When one sees the sudden increase of grants, but without loss of quality…., and the way the boards of appeal are ill treated, with the fees having to go up, and the posts being only sparingly filled, one wonders if we do not have here the secret agenda of the president of the EPO. Let everything go down the drain, so that the only place to litigate will be the UPC. And this is a good forum for companies having deep pockets. But no it is just for the SMEs. Convenient, n’est-ce pas?
The following comment explains that the UPC “was a bad idea from the start, irrespective of Brexit. Pushed for by the litigation community…”
It was a bad idea from the start, irrespective of Brexit. Pushed for by the litigation community in complete ignorance of the realities of the industries they purport to represent. Further evidence, if it were ever needed, of the self-serving bubble of ignorance and incompetence in which such lawyers reside.
Seeing the original delusions from Bristows, one person rightly or justifiably joked: “This is an April Fool’s, surely…..?”
Well, Bristows is lying, not joking. There is a profound difference between those two actions.
Another person said:
The UK is busy gathering cards to play in its negotiations with the 27. Hinting at weakened co-operation on security against terrorism is just one dirty example. Ratifying the UPC is just another card in the hand.
The UK should oppose swallowing the UPC as British businesses certainly do not want the UPC. It would only harm them. As one EPO insider put it the other day, “IPKat becoming a mouthpiece of the UPC lobbying clique? Jeremy we miss you!”
“Smyth wants us to wrongly assume that the UPC is about to start irrespective of the UK.”Well, even some former ‘Kats’ miss him. He used to actually antagonise Battistelli. Look what his blog became after he had left, habitually deleting my comments. The UPC boosters, especially after he had left, used the blog for shameless self-promotion. It’s not just Bristows but Darren Smyth also. He wrote: “There will be likely at least a year of uncertainty between the UPC opening, and the question of the continuing participation of the UK being resolved. If there are no enough users of the system, it may not be financially viable and then again its future would be open to doubt. Here again, readers will doubtless have their views.”
That’s a very loaded statement which doesn’t really belong at IP Kat. Smyth wants us to wrongly assume that the UPC is about to start irrespective of the UK. Nothing is true about certainty at all (even outside the UK) and pretending that it’s inevitable is part of the brainwash we’ve repeatedly complained about.
“They’re like a political party, the “UPC Party”.”Remember MIP’s UPC lobbying events — the ones without any critics of the UPC in them? Darren Smyth personally participates in such events, in his capacity at a law firm; no actual producers are invited, attending etc. (it’s super expensive and designed to exclude some views, just like RNC and DNC). They’re like a political party, the “UPC Party”.
Smyth wrote: “This is the crux of the matter. At an event on Brexit and IP convened by IPAN, there was some doubt about the attractiveness of a new patent and litigation system whose membership was, from the very beginning, in doubt. Those interested in the effect of Brexit on IP should look out for IPAN’s forthcoming report: “IP, Brexit and beyond – a blue-print for action in IP”, which will be based on the event. Similar concerns were voiced at the MIP International Patent Forum.”
Here again is that same old UPC promotion. Echo chamber, courtesy of IP Kat. So from being a Battistelli antagonist the site has turned into a weapon of Battistelli’s agenda. How sad…
Thankfully, the responses are all pretty much dissenting, in the sense that they don’t share the same optimism as the original writers’ (as is common in IP Kat these days). Bristows' views in particular received a lot of flak.
One person wrote:
I remember 1978 when the PCT and EPC got started. Applicants were very cautious, but the economics of filing PCT/EPC were so much more attractive than continuing to file national. The EPO did nothing to dent confidence in its procedures or in the way it examined substantive patentability. So then, after a few years of caution, and of keenly monitoring EPO performance on thousands of cases, everybody simply piled in.
That was the level of cautiousness then. I cannot imagine it is much different today.
But think about when the deciders ask: Unitary patent? Why should I?
Is there any persuasive answer why they should? we are always being told that industry hates uncertainty. Is saving on annuities enough of a reason to switch to unitary? In Big Pharma, who is going to volunteer to go first?
Here is more:
“If the UK is peripheral to the operations of a company….”
Here’s the rub.
For most major patent filers, and thus most major litigants, and thus most of the (potential) major users of the court, the UK is indeed peripheral to the operations of the company (emphasis on company).
However, for the patent litigation system, both: (i) as it stands at the moment; and (ii) as projected under the UPC, the UK is a very important component. The UK has been a significant contributor to the design of the UPC system, and is also significant in terms of the contributions from judges, the patent jurisprudence, and (to be honest) the lawyers.
How is the circle going to be squared?
Comment #2 [above] asks how the circle will be squared.
It seems to me that England is an extremely important jurisdiction for high value patent litigation where fact-finding is key to the outcome. Mainland Europe doesn’t understand equity, disclosure, cross-examination. Time and again, business people in civil law jurisdictions get burned by English law fact-finding. The arrogant assertion “That’s for me to know, and you to find out” doesn’t end the matter if you litigate in England (or the USA).
So unitary patent or not, I see England having on ongoing important role to play, when patents get litigated in Europe.
“I can’t imagine anyone in their right mind who would put their Crown Jewels into the Unitary Patent system,” said the following comment:
I can’t imagine anyone in their right mind who would put their Crown Jewels into the Unitary Patent system.
The UPC is a different question entirely. However, it will be several years before those who can afford to opt their cases out take a look at whether they should revisit their decision.
With all “important” cases opted out by all those with deep pockets, what will there be left for the UPC to work with in the early years? There will of course be some cases where the proprietors can afford to lose their patent. But there will not be too many of those. There is only one group of operators for whom the UPC will be very attractive from the off: non-practising entities.
So, the UPC will be a troll’s paradise. With not many cases to go around, what is the betting that the various local divisions will end up “competing” against one another for the biggest source of “work”? And so what is to stop the UPC creating a European outpost of the Eastern District of Texas?
It’s not looking good. The only crumb of comfort that I can cling on to is that the Unitary Patent Package appears to contravene general principles of EU law, and so there is a faint chance that it could end up being struck down by the CJEU.
With “UPC,” one person asked, “what happens to the supremacy of the ECJ over UK law in this so bright and rosy independent future?”
Well, the British government intends to maintain legal supremacy, which means that the UPC remains untenable. David Davis is mentioned again in the following comment:
I still fail to understand how the UK government, while trumpeting loudly about being freed from the shackles of the ECJ, can boldy come along and ratify a treaty of which it knows full well it will be stepping out in 2 years time…could someone please explain the rationale behind this, other than some cynical attempt to gain negociating points with regard to the EU – after all, if the UK does ratify, and the whole thing kicks off, how long is the UK going to hold the system in a suspended state of animation pending negotiation of some kind of acceptable exit deal ? Listening to Theresa May in parliament at PMQs on March 29th, and David Davis yesterday, one gets the impression the UK government is going to do what it jolly well pleases legislatively as and when the time comes. Irrespective of the legal arguments presented in support of a Brexited-UK still being able to be a member of the UPC, what happens to the supremacy of the ECJ over UK law in this so bright and rosy independent future ?
Now that decline in EP quality (low quality in processes and grants) is no longer a secret, people rightly express concerns about what a UPC-like regime would mean. We suppose there will be an EPO rule of thumb some time in the future, something alone the lines of “EPs from number x upwards (or year y onward) are dubious and should be taken with a grain of salt.” The Battistelli era has been thoroughly damaging to the reputation of EPs, not just the reputation of the EPO, and the “number of NPE cases in Germany is rising steeply and the NPEs more and more tend to litigate outside of the USA,” said the following comment:
Proof of th epudding is very sceptical about the success of the UPC. Where I can understand that from a European point of view, things are regarded differently at the other side of the ocean(s). For non-Europeans the scattering in Europe (the capital of Denmark is Amsterdam, right? And something terrible is happening in Sweden. Sweden, by all means!) is gruesome and should be ended as soon as possible.
I thus expect that many American, Japanese and Chinese companies would welcome this one court fits all principle.
It has been announced that the court will have experienced judges: most of the leading patent jaudges in the UK, Germany, France and The Netherlands will appear as UPC-judges. Thus, quality of teh court will not be a problem.
A problem in the first years of the existence of the court will be the harmonisation of the procedures, where local habits may tend to be persistent.
The fear for NPEs as mentioned by Proof seems to be justified. At this moment already the number of NPE cases in Germany is rising steeply and the NPEs more and more tend to litigate outside of the USA (and thus in Europe). On the other hand: is the attitude of NPEs objectionable? I do not see that you should be a producer yourself in order to be allowed to stop others producing.
So, I do not share the bleak view of Proof of the Pudding and I share Max Drei’s comparison with the start of the PCT and EPC: in the long run (which hopefully may not be that long) the UP and UPC will be a success.
Finally we see better and broader realisation of the trolls problem in Germany. People are catching up with the latest. These trolls are already coming to the UK, too. Cautionary tale about the UPC? Only lawyers in London would profit from this.
“I say that the UPC will be a troll’s paradise because of two main factors,” said the following comment. To quote:
I do not object to NPEs. I object to “trolls”. There is a subtle difference between the two. A troll engages in abusive (threats of) litigation in order to extract income from a patent of highly dubious validity (or from patent claims that cannot validly be “stretched” to cover the activities complained of).
I say that the UPC will be a troll’s paradise because of two main factors. Firstly, the ridiculously high fee for filing a counterclaim for revocation. For the victim of abusive litigation, that’s effectively a tax on defending yourself. Secondly, there is still no functioning market for (patent) litigation insurance. This will leave SMEs in Europe as “easy pickings” for trolls… no doubt heavily backed by investment groups that will view all of this as a wonderful wheeze.
Going back to the above-mentioned possibility of patent trolls coming from abroad (including China and the US), the following comment says this:
Upon reflection, I take issue with your assertion that you would “expect that many American, Japanese and Chinese companies would welcome this one court fits all principle”.
The problem that I have with your assertion is not that such companies won’t perceive the potential advantages to the UPC. Of course they will. Instead, my issue is that all such companies will surely have European advisors… who will no doubt be pointing out to them that it is a complete no-brainer to opt out all of their important patents and applications (at least for the time being). And if their European advisors are not doing that, then I would question why not.
On a totally separate theme, Max is of course correct to point out that users were initially hesitant to utilise the EPO. No doubt the same theme will play out with the UPC. However, there is a crucial difference between the EPC and the UPCA. For the former, it has taken over 40 years for fundamental flaws in the governance structure set out in the EPC to be exposed (by a ruthless and self-serving borderline psychopath). For the latter, anyone who cares to consider in detail how unitary patents and the UPC can be made to work will realise that the system is already horribly broken before it has even started… not to mention that is also has similar flaws as the EPC in terms of governance.
I should point out that I am all for a well-designed, fully functional “unitary” patent system for Europe. I just haven’t seen one yet.
A response to the above said: “How convenient it was for the EPO President (on secondment from Paris) to skewer the EPO’s patent law-making” (as is usual from Battistelli). To quote:
Just one observation on that last posting by Pudding and his use of the term “self-serving”:
How convenient it was for the EPO President (on secondment from Paris) to skewer the EPO’s patent law-making Appeals Directorate DG3. Not only did it wreak revenge on his troublesome judges in Munich, but it has also helped the Paris Seat of the UPC to get up and running with an enhanced flow of pan-European patent disputes.
The CJEU always did have French as its working language so the “seat” of pan-European patent law in Munich always was an affront to La Grande Nation. Till now, that is.
We are sad to say that inside the comments there is a lot more factual information than in the so-called ‘articles’, which are actually like advertisements rather than reporting. If this is what IP Kat has been reduced to, then we have no choice but to carry on rebutting that UPC lobbying. Not because it’s IP Kat but because it is not correct. █
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Summary: Tackling some of the blogs, owned and run by Team UPC, which attempt to tell us that everything is under control even though the UK strictly cannot participate in the UPC as a non-EU country (which it’s en route to becoming)
BATTISTELLI and his EPO cronies must be pleased. They need not lie when others do the lying for them. UPC 'lobbyist' Annsley Merelle Ward, citing MIP (the supposed 'reports' we've just tackled) and the UPC Preparatory Committee (which is the likes of Bristows, basically a bunch of moles who try to make their own project go down the throats of misguided politicians), is lobbying again in IP Kat. The headline is not even true, just more wishful thinking for the echo chamber.
It says this: “The update from the UK IPO also confirmed that the UPC Preparatory Committee’s HR team is ready to proceed with the judicial recruitment process following the commencement of the provisional application period. This update came during Wednesday’s Preparatory Committee’s Interim Team meeting held at the UPC Court of Appeal building in Luxembourg. The Interim Team consists of 5 sub-groups in charge of finalizing practical arrangements for the UPC.”
“Executive cannot become legislator. One or more does not change anything.”
–Benjamin HenrionA lot of readers probably don’t even know what the “UPC Preparatory Committee” actually is. They don’t know who’s in it. It’s not what it sounds like. It’s like those think tanks that call themselves the very opposite of what they stand for.
We are not surprised that Bristows, which refuses to honour democracy, has yet again ‘borrowed’ IP Kat (blog to be ‘loaned’) for some UPC lobbying and “damage control”. Seeing the lack of interaction (and probably traffic) in Bristows’ own site, they could really use some extra audience. Here is Bristows’ misdirection to Latvia, where Battistelli's secret visit raises all sorts of serious questions. We suppose that Bristows has had nothing positive to say about the UK, so it attempted distract from it, later writing about Belgium as well (non-news).
Someone called Josep Maria Pujals (from Spain) responded to the above and said: “Everyone doing its home work but no news from UK, deadline for PPA next 29 May..”
“Right now there is nobody in the UK who can wholeheartedly ratify the UPC, more so after Brexit (Article 50 invocation makes it almost irreversible).”Yes, they know they have run out of time. They promised the UPC by March 7th and the end of March. But that never happened. Another false prediction or deliberately bad advice (or lobbying) from the people who advertised job openings that never existed and probably will never exist. Isn’t that some kind of offense?
“Executive cannot become legislator,” Benjamin Henrion pointed out the other day. “One or more does not change anything.”
Right now there is nobody in the UK who can wholeheartedly ratify the UPC, more so after Brexit (Article 50 invocation makes it almost irreversible).
Dr. Luke McDonagh, a London-based academic who understands Brexit pretty well, says: “I think Joris’ point is that the EU holds most of the chips. Even if the UK holds a UPC card, it is still a comparatively weak one…”
“Britain will carry on with the usual system and so will Spain.”Bargaining chips or card analogies aside, British companies do not want the UPC. They would rather keep the the UPC out of the UK and consider that a favour.
“Sorry to put an UPC angle on this,” wrote a patent attorney from Germany, “but doesn’t this mean that the UPC is a bargaining chip for the EU?”
Not even companies in continental Europe want the UPC. Law firms try to fool some of them into thinking that the UPC is desirable, but it’s the “the other way around,” as Henrion noted. The UPC is a negative, not a positive, and moreover Brexit is in conflict with it. A nation must be an EU member to participate in the UPC. Josep Maria Pujals seems to be very well aware of this (as a Spanish lawyer) and since Spain is not ratifying either, this thing is going nowhere. Remember the lies/distortions that have been spread about Spain in an effort to compel the UK to ratify in March? Well, that evidently didn’t work and there is now an “[e]ntry into force of the new Spanish patent law” without the UPC, as explained in this new post. To quote:
The Council of Ministers approved today the Regulation for the implementation of the Patent Law (Law 24/2015) by means of a Royal Decree. The new patent law and regulation will enter into force on April 1, 2017.
Britain will carry on with the usual system and so will Spain. What all those other nations choose to do with their UPC (which has London and English embedded in it), let’s just hope that they get rid of this big pile of papers in an environmentally-friendly fashion. The UPC belongs in the compost pile. We expect the nefarious rumours and dirty tricks of Team UPC to carry on for a few more months before some of them simply give up and realise that their investment in UPC was money down the drain and reputation in the bin. █
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Reference: Want to Make a Lie Seem True? Say It Again. And Again. And Again
Summary: Behind a torrent of optimistic predictions that can be traced back to ‘Managing IP’ there is nothing of much substance, just the typical lobbying from UPC hopefuls (standing to profit from it)
THE EPO has been totally silent about the UPC since Article 50 news. We don’t think it’s a coincidence. Battistelli would be shouting from rooftops (like the balcony of his new penthouse) if there was something positive to say.
“So what we have here are 4 words attributed to UK-IPO without even a link.”MIP has just published what seems like Team UPC- and Battistelli-motivated lie, tweeting about it on several occasions [1, 2] and writing no less than 3 ‘articles’ about it (behind paywall, so the accuracy of headlines is difficult to ascertain unless you are from within the echo chamber). Kingsley Egbuonu, speaking behind paywall and sporting no links (to back the assertions), offers just the following statement: “A UK IPO statement has confirmed that preparations “remain fully on track” and given more detail on when the last few legislative steps should be expected. This comes a day after Prime Minister Theresa May triggered Article 50 to commence Brexit” (the headline is even worse, it says “UK on course to ratify UPC Agreement”).
So what we have here are 4 words attributed to UK-IPO without even a link. As we noted here last month, the UK-IPO lost its head, who was Battistelli-hostile. We don’t know if the new head is more UPC-friendly and Battistelli-friendly; that remains to be seen.
Well, the following day, composed by the same writer was this post stating: “UK remains “fully on track” A UK IPO spokesperson confirmed yesterday that the UK government’s preparations to ratify the UPC Agreement (UPCA)…”
“The same unsourced 4 words again, this time attributed to “spokesperson”.”The same unsourced 4 words again, this time attributed to “spokesperson”. Then came the third article.
So what we basically have here is MIP turning 4 words form an unnamed “spokesperson” into headlines such as “UK on course to ratify UPC Agreement”. We remind readers of the special relationship between MIP and Battistelli, not just the UPC, as last noted by us 3 weeks ago after they had set up UPC lobbying opportunities.
“Need it be added that UPC ratification is not a decision for the UK-IPO to make?”Later on we’ll show that UPC lobbyists rely a great deal on these questionable claims from MIP. The UPC “remain fully on track” towards what? To fall through? To be tolerated outside the UK? It doesn’t say. That’s just typical pro-UPC ‘reporting’, like calling 5% of politicians at 1:30 AM (yes, late at night) "Bundestag". Need it be added that UPC ratification is not a decision for the UK-IPO to make?
As we noted here some days ago, the UPC as we know it is practically dead now, but Team UPC will resort to anything to make it seem otherwise. It’s a lobbying campaign and some of the so-called ‘media’ is part (or extension) of this lobbying. █
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There she is, still there today (1PM GMT)
Summary: Attempts to shape or change the composition of public servants, courtesy of the self-serving patent microcosm, in light of a new presidency that’s perceived as an opportunity to Make Litigation Great Again (at the expense of scientific progress)
THE attempts to ‘scandalise’ (political tactic) or outright oust Michelle K. Lee have apparently not ended. The patent microcosm has floated many theories about it and tried to cast doubt on Lee’s leadership for several months, even while she publicly appears in Battistelli photo ops (EPO propaganda from yesterday).
Yesterday, Dennis Crouch (who had already received a letter of confirmation about Lee’s position) chose to write about who’s running the USPTO. At the EPO it’s just Battistelli, Battistelli’s lapdog Kongstad and Battistelli’s cronies, but in the US there is actually diversity of views/interests. Here is what Crouch wrote:
Michelle Lee remains at the top as Director of the USPTO and Undersecretary of Commerce. As one of the few political-appointee holdovers from the Obama administration, Lee’s position remains somewhat tenuous, but I expect that it will be solid for at least several months. One noticeable gap is that the Commerce Dep’t website still fails to indicate Dir. Lee’s position.
He links to the page of “Leadership”, where she does not even exist, but see the screenshot above. What compels Crouch to think that she will be ousted in “several months”? Gut feeling alone? Maybe that lobbying tactic of trying to motivate particular actions/outcomes using particular baseless predictions (Team UPC does this a lot)? Either way, why is this even still a subject? Those who attempt to ‘scandalise’ her role are always part of the patent microcosm, including Crouch himself. IAM actually tried to promote a corrupt person to replace her and right now it writes about “IP lobbyist and founder of the Farrington Group” (a lobbyist like IAM itself and other people whom IAM hopes will shake up the patent system under Trump. To quote a portion:
But, if confirmed, Delrahim would arguably have the most IP experience of anyone who has ever led the DOJ’s antitrust unit. Over a career that has seen him make the typical switch between public service and private practice, Belrahim has worked on IP issues at the domestic and international trade levels, building a track record that earns him broad bipartisan respect. During the George W. Bush administration, he was a member of the Antitrust Modernization Commission which made a number of recommendations around the overlap of patents and antitrust; while before joining the Trump transition team, Delrahim worked as a lobbyist in private practice at Brownstein Hyatt Farber Schreck where his clients included Qualcomm. Early in his career, he also worked at the National Institutes of Health (NIH) where he was detailed to work as the deputy director for IP rights at the Office of the US Trade Representative.
They are trying to influence promote ‘their’ people, i.e. patent maximalists. Never forget the agenda (and funding sources) of sites like IAM. They don’t want what’s good for science and technology but what’s good for patent profiteers.
Lee is a technologist, unlike Battistelli, and the only alleged ‘scandal’ is that she wants to curtail patent trolls and other abusers. █
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Photo op time!
Summary: The EPO is exploiting CPVO again, in yet another shallow effort to make the practice of patenting seeds, plants etc. seem acceptable
SOME of the loudest EPO critics are farmers who bemoan patents on living things (pigs, seeds, etc.) — possibly an issue to receive more media attention now that a German company owns Monsanto (Carlsberg of Denmark, for example, now wants patents on crops and actually receives these). So the EPO is scrambling to construct a misleading, inverted narrative. The above is not the first of its kind; we covered such examples before.
“So the EPO is scrambling to construct a misleading, inverted narrative.”The EPO has been granting patents on human life (it’s still in the news right now, with new press releases coming out from opportunists [1, 2]), not just on seeds and plants, even in defiance of directives. Today (a few hours ago) this ‘damage control’ came out (warning:
epo.org link). To quote part of the puff piece:
Technical and legal experts from the EPO and the Community Plant Variety Office (CPVO) gathered for a second joint workshop to exchange information on plant-related patents and plant variety rights. The event, which took place at the EPO’s headquarters in Munich on 30 March, was organised within the framework of the Administrative Arrangement signed between the two organisations in February 2016. The agreement aims to strengthen bilateral co-operation between the EPO and CPVO and to increase transparency through the exchange of information.
We don’t know to what degree (if any) the Community Plant Variety Office represents the interests of farmers, gardeners etc. We have not yet researched the subject thoroughly, but the EPO certainly uses CPVO quite a lot for PR purposes. We don’t even know if CPVO represents the interests of Europeans, including more agricultural economies than Germany’s. CPVO is French and it seems to be associated with monopolies. Wikipedia says “[i]ts task is to administer a system of plant variety rights, also known as plant breeders’ rights, a form of intellectual property right relating to plants.” Patents are not properly and ascribing to them terms like “intellectual property” says quite a lot about the agenda. Plants have existed far longer than humanity. To quote further from Wikipedia: “The CPVO’s budget is principally derived from PVR application fees paid by breeders who wish to protect their creations.” As if humans “created” nature and are “protecting” it by taxing everyone for this supposed “creation”. Sounds like something out of Monsanto’s playbook.
“We don’t know to what degree (if any) the Community Plant Variety Office represents the interests of farmers, gardeners etc.”We ought to remind readers that Germany is becoming a hub for patent trolls, hence law firms. It is a host to the EPO and it makes a whole lot of money out of it. Merkel’s government seems to be pursuing the UPC as another cash cow for Germany (litigation) and this is why we suspect the German media remains silent on many of the scandals, including the above. Even if the corporate media understands that something is ethically wrong, it’s still perceived as beneficial to Germany. Perks for some local firms, notably law firms and those servicing them, are of no use to other countries. It’s like in parts of Texas (which ‘eats’ the US economy in patent courts that are infested with patent trolls). This morning we saw this new press release from “Munich, Germany” and it serves to reinforce this idea that it’s mostly Germany benefiting from the EPO, in the same way Germany benefits a lot from the EU. We don’t wish to deviate away and veer into subjects like the EU (EPO is not an EU-affiliated institution, unlike EU-IPO) but simply to highlight possible explanations for that “conspiracy of silence” among German publishers.
“We ought to remind readers that Germany is becoming a hub for patent trolls, hence law firms.”The EPO has attracted less patent applications than last year (even fewer than what is claimed by the EPO), yet the EPO is trying to spin these numbers (tweet from yesterday, similar to this from today). Is that because stakeholders recognise that EPO-granted patents (EPs) aren’t worth the price (fees) now that the EPO is over-granting and delivering poorer service? See what the EPO wrote about Spain yesterday. Unlike the large majority of European nations, which the EPO conveniently removed from the map, in Spain it is claimed that ‘demand’ for EPs was marginally up (these numbers can be disputed). What about over a dozen nations which are less interested in EPs and are apparently divesting? Maybe they too realise that the EPO does not serve their interests? That it’s being reduced to a cash cow of Battistelli and his clique? █
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Summary: A breakdown of responses to Britain’s exit from the EU (as per Article 50), with its mortal impact on the Unified Patent Court that was long envisioned and lobbied for by the patent microcosm
THIS WEEK was a dark week for EPO management. They spent a fortune promoting the UPC (even paying publishers!), which is now essentially dead. For those who don’t know why the UPC is a very terrible idea, a reader prepared the above cartoon to demonstrate what the UPC would accomplish if it ever became a reality (maybe reused graphics but source unknown/unspecified in this original tweet). It’s all about domination over European companies, not by European companies, certainly not the 99% of them that are not multinational giants (like Philips).
The response to the news was unsurprising. Will Team UPC acknowledge defeat and move on? Never! Their media, as well as their own blogs, will sing the same old tune, which is “real soon now!” (they have been saying this about the UPC for over half a decade now, even predating the buzzword “UPC”).
“It’s all about domination over European companies, not by European companies, certainly not the 99% of them that are not multinational giants (like Philips).”Here is one example of this. “UK’s ratification of UPC agreement delayed,” according to the headline. But no date is given. They mean called off. Until further notice at least. The word “delayed” is loaded as it implies that this will happen sooner or later. To quote this article (from the patent microcosm’s ‘news’ site): “On the eve of the UK government triggering Article 50 to kick off the Brexit negotiations, it is looking less likely that the country will ratify the Unified Patent Court (UPC) Agreement before the start of EU talks.”
Or ever! Forget about it. The headline could easily be written to say something more honest, but the site has an agenda. It’s not Europe’s agenda but some law firms’ agenda.
As Benjamin Henrion put it, “the UPC camp will say UK still has 2 years to ratify.”
2 years. 22 years. What’s the difference anyway? It’s always “real soon now”. It’s always inevitable, unstoppable, just a matter of time or whatever. We have grown tired of these sick lobbying tactics.
“It’s not Europe’s agenda but some law firms’ agenda.”What does the mainstream British media say down in London? The Financial Times was already bribed by the EPO (another brilliant Battistelli policy) and then promoted the Unitary Patent (on numerous occasions even), so those within the patent microcosm who cite it must be desperate or simply ignorant about the financial strings. This one says “May ‘softens’ on role for the #CJEU post Brexit … a chink of light for the #UPC?”
No, nothing of that kind.
Dr. Glyn Moody quoted earlier today a tweet from the Financial Times that said “European Courts will have “no future role” in UK law after Brexit, insists David Davis…”
Moody continued by stating “so that means no flights between UK and EU, no? also, no #UPC…”
Here is another concerned voice saying “Certainty on UK’s #UPC ratification needed ASAP Wednesday briefing: Brexit – the next two years start now…”
“Dr. Glyn Moody quoted earlier today a tweet from the Financial Times that said “European Courts will have “no future role” in UK law after Brexit, insists David Davis…” “Needed for who? Team UPC? Uncertainty is needed. The UPC is not happening here and it's good for British firms. The last thing they would want is UPC certainty of any kind. The only such certainty is being given by Team UPC itself, as it continues to mislead the public about the situation. As the EPO paid a lot of money to all sorts of publications we must wonder if this new article too is some kind of ‘placement’. They’re just quoting Battistelli’s lies about the UPC (in the Canadian press). This is a fine example of poor journalism or perhaps PR money at work.
What does British press for lawyers say? Well, a prominent site went with “BREXIT: Triggering of article 50 makes UK’s ratification of new Unified Patent Court more uncertain, says expert” (more or less accurate). Here is the opening part:
Christopher Sharp of Pinsent Masons, the law firm behind Out-Law.com, said the triggering of article 50 of the Treaty on European Union by the UK government on Wednesday makes it less certain that the UK will formally ratify the UPC Agreement.
Sharp said many were surprised in November when the government announced that it intended to move forward with plans to ratify the UPC Agreement.
But that was Lucy, who has since then been fired or resigned. We wrote the following series about it at the time.
What does Battistelli's lapdog (IAM) say? Well, it links to the above article and says: “Think this is true, but government does seem to be pulling back on its previous no ECJ absolutism.”
“They are again spreading uncertainty and doubt about ECJ, probably as part of their longstanding lobbying endeavour.”No. See the above quote from/about David Davis himself. They are again spreading uncertainty and doubt about ECJ, probably as part of their longstanding lobbying endeavour.
“They won’t pull back,” an EPO insider told IAM, “in fact just the opposite will happen !”
Looking at Team UPC blogs and sites, it’s quite a parallel universe!
Marks & Clerk, for example, having repeatedly lied for UPC ratification purposes, is trying to sell services now. Well, only a fool would trust anything they say on the UPC given their track record. They now state that “[i]t is important to note that a unitary patent is not available if a European patent is granted before the Unitary Patent and UPC systems come into effect.”
“Looking at Team UPC blogs and sites, it’s quite a parallel universe!”What a loaded statement. We’re not even at the stage when the UPC even exists! They’ve already taken it one step ahead. How typical of them…
Here is another law firm trying to sell services around this news. “What is less certain is the fate of the Unitary Patent and Unified Patent Court (UPC),” it says. “Both of these systems – currently predicted to come into force by the end of 2017 or start of 2018 – are currently only open to EU members. If the current timetable does not slip significantly, these are expected to come into force while the UK is still an EU member and therefore they will apply to the UK. What is less clear is whether the UK can remain a member of the Unitary Patent and UPC after leaving the EU. This is likely to be one of many issues on the table in the upcoming negotiations.”
Notice how they already shift the expected day to 2018. They just can’t stop changing their predictions all the time. Later this year they’ll say 2019, then 2020. So much for ‘legal advice’…
Moody spotted this passage from an article shared by Christopher Weber from Germany: “Kommt der Brexit, steht das gesamte neue europäische Patentsystem wieder auf der Kippe – noch bevor es überhaupt gestartet ist…”
A rough translation from German: “Comes the Brexit, is the whole new European patent system back on the brink – even before it is ever launched” (unedited, automated translation).
“Notice how they already shift the expected day to 2018. They just can’t stop changing their predictions all the time.”Yes, it’s a dead project.
Weber had said: “Maybe time again to point out what I said about the #UPC 2 days before the #brexit #Referendum […] We’ll what I said was more in the vein of: we could get up to 2 years delay + cost/benefit relation will change. […] I learned since then that at least big parts of the industry want to go ahead with UPC w/ or w/o UK.”
That’s a lie. Law firms (and big clients) are not “big parts of the industry”, though Weber insists that they are. A UPC-like regime would be good for patent trolls, but Weber just calls “trolls” people whom he does not agree with.
Henrion asked him, “big parts of the industry means large companies?”
Weber responded in a self-defeating fashion with “People from Bayer and Siemens said so at last year’s GRUR, so, yes. I have not heard to the contrary from any part of industry.”
“Law firms (and big clients) are not “big parts of the industry”, though Weber insists that they are.”Monsanto and Siemens is “big parts of the industry”? They’re more like patent bullies. Of course they would want the UPC! Easier litigation everywhere.
“Wake up and face reality,” the EPO insider then noted. “UPC is DEAD !”
Lies are abundant among Team UPC. In fact, they have become the norm. Consider what Withers & Rogers, for example, just published. It seems to be a law firm that patently lies. “Great for SMEs,” it said about the UPC. “Chance to leverage 25 country injunctions in a single action. Lower court fees.”
How many SMEs even operate in 25 countries? SMEs themselves have already refuted this lie and Henrion told the above firm, “trolls not SMEs.”
“Lies are abundant among Team UPC.”Maybe in the eyes of law firms, “small” companies that come to them make nothing at all excerpt lawsuits.
Anyway, the UPC certainly looks like history and it may take several years before any clear answers are available. Does this mean that the ‘Mafioso’ at the EPO will have an excuse to demand another extension of his term, going into his seventies in clear defiance (yet again) of the rules? It would not surprise us at all. █
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