Reference: Alternative facts
Summary: IAM ‘magazine’ misleads its readers and does a disservice to a potentially large audience with alternative facts about the Unified Patent Court (UPC) — a theoretical system which is stuck in a likely perpetual limbo
THE just-released issue of the magazine (behind paywall) called “IAM” (3 words that are lies, “intellectual”, “asset”, and “management” — all in relation to mere ideas!) puts forth a wild leap of faith by Joff Wild. The headline is “The UPC springs back to life” and it says in the except that “The Unified Patent Court received an unexpected boost in November 2016, when the UK government committed to ratifying the agreement despite Brexit.”
Our rebuttal at the time explained why it made no sense. It was a 7-part series:
Lucy Neville-Rolfe has since then left her job and Dr. Luke McDonagh, who criticised what she had said at the time, will speak about the subject on February 8th (this coming Wednesday), based on this new page and a tweet about his book. “Book launch for ‘European #Patent law & the UPC’ by @DrLukeMcDonagh @CityUniLondon,” it says.
It’s rather ironic that Britain, renowned for a large ‘industry’ of lawyers, was what most likely killed the UPC. Team UPC will likely attempt to redraw it, not withdraw it. █
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Bristows LLP is just one of many in Team UPC, which has become like a cult
Kat-lie or Kel-tie?
Summary: The peddling of lies regarding the prospects of the UPC, or the dissemination of “inevitability” claims (self-fulfilling prophecies tactic), cannot withstand scrutiny, as people who don’t lie for a living rightly point out
THE EPO we’re already accustomed to hear nothing but lies from; but a growing number of law firms, including some that are based in London, tarnish their reputation by making false predictions that are politically and financially (self gain) motivated. These false predictions — if not outright lies and blatant falsehoods — can cost their clients dearly, as these clients are being fooled if not lied to, e.g. regarding the 'benefits' of UPC to SMEs.
One source of rebuttal to these lies has been Dr. Ingve Björn Stjerna, a Certified Specialist for Intellectual Property Law in Düsseldorf. Florian Müller has just amended his article to say: “The author of this guest post has now published a new article on the recent political statements as regards a ratification of the UPCA in the United Kingdom and their legal implications.” In Twitter he called it out as well, as follows: “just added a small update at the end of the recent guest post on Europe’s Unified Patent court…”
This is about the UPC in the UK — merely a hypothetical/theoretical idea that is extremely unlikely to ever materialise. But if one listens to CIPA, a bunch of lobbyists (front group) for the patent microcosm in the UK, fake news are abundant.
This tweet from CIPA says: “Kevin Mooney tells our UPC Seminar the process will be smoother if the UK can ratify the Court Agreement before the Govt triggers Article 50″
Another says: “Kevin Mooney on the question: Can UK stay in UPC post-Brexit? Refers to Gordon/Pascoe opinion that there’s no legal/constitutional barrier”
They are merely expressing their wishes rather than what will actually happen. And law firms from the UK nonetheless repeat this nonsense as though it is fact. “According to Kevin Mooney at @TheCIPA meeting on Tuesday,” one of them wrote, “UK may be aiming to ratify UPC before Article 50 is triggered. #UPC #Brexit”
“That means by 9th March,” IAM added (IAM, for those who forgot or don’t know, was paid by the EPO’s PR agency to help set up pro-UPC events, supported explicitly by the EPO).
“UPC Agreement to be ratified in UK before Art. 50 is triggered,” one person told us “i.e. until early March…”
“New assessment regarding the intended UK ratification,” told us this person, was published this week with an English version
[PDF] and the following summary in English (it’s also available in German). To quote:
The British ratification paradox,
Article on the recent political statements as regards a ratification of the UPCA in the United Kingdom and their legal implications (02/02/2017)
Most recently, statements with relevance for the ratification of the Agreement on a Unified Patent Court (“UPCA”) made by members of the British government caused astonishment. While the new British Minister of State for Intellectual Property, Joseph Johnson, underlined the ratification intent, Prime Minister Theresa May shortly afterwards, in her speech on the “Brexit” negotiations, defined a number of objectives which appear hardly reconcilable with such ratification. In this context, it is also of interest that, contrary to the political guidelines set by the previous Prime Minister Cameron and against the broad opposition of the professional circles, the CJEU can be expected to have gained an interpretation competence also in relation to material questions of unitary patent protection, as a consequence of the compromise in the dispute on former Art. 6 to 8 of the “unitary patent” Regulation. The following article describes the statements and their legal implications in more detail.
How long will people be gamed and manipulated by Team UPC with its fantasies? This isn’t the first time that the above author contradicts these false predictions and here is a new comment from IP Kat (“bye bye UK participation in the UPC”):
The Brexit White Paper makes an interesting read:
“We will bring an end to the jurisdiction of the CJEU in the UK”.
So bye bye UK participation in the UPC, then? Or might this not quite mean what it says? The subsequent sentence perhaps gives a clue.
“We will of course continue to honour our international commitments and follow international law”.
I guess that one could characterise the UPCA as “international law”, and so this perhaps leaves the government with some “wriggle room”. However, it will be interesting to see how (if at all) the government manages to “square the circle” where obeying international law (such as the UPCA) requires the CJEU to have jurisdiction in the UK.
Based upon my observations to date of UK politicians, I predict that the mutual incompatibility (with respect to e.g. the UPCA) between the two above-quoted statements will be handled in the usual manner. That is, the government won’t bother trying to explain itself. It will just be evasive and change the topic.
The same approach will be used to handle the question of how free trade with the EU can be achieved without submitting to common rules (and the jurisdiction of a court that interprets those rules)… especially as the proposed alternative (a dispute resolution mechanism that does not have direct effect in UK law) is very unlikely to be palatable to the other EU Member States.
We don’t expect the UPC to ever become a reality and as we wrote yesterday, neither do professionals in the area, based on a new poll/survey. We already wrote some long rebuttals to this a few months ago:
Remember that the person who promised ratification in the UK has since then been sacked or stepped down. █
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Summary: A lot of the latest calls for action are culminating in more press coverage, but at WIPO — like at the EPO — any attempts at self-investigation are nothing but cover-up and jaw-dropping lies
THE calamity of abuses by EPO management against workers is not entirely unique, even if it’s the worst (or most severe) in the world. The suicides at the EPO are not unique either, as it already happened at Gurry's WIPO (Gurry and Battistelli actually competed for the same position).
According to this week’s report from The Register, “UN staff demand ouster of controversial WIPO boss Francis Gurry,” mirroring what we have been seeing at the EPO. To quote:
United Nations staff are demonstrating in Geneva this afternoon to demand the ousting of Francis Gurry, the controversial boss of the World Intellectual Property Organisation (WIPO).
The collective action of staff associations in calling for the removal of a UN agency head is certainly irregular, but Gurry’s reign at WIPO has been peppered by irregularities.
The director general has been embroiled in controversy ever since he sacked the previous head of WIPO’s staff council, Moncef Kateb, after Kateb blew the whistle on the bizarre behaviour of the patent boss and his transfer of computer equipment to Iran and North Korea in apparent breach of UN Security Council sanctions.
We previously received some legal documents from an anonymous UN insider, but these were in French (Switzerland/Geneva) and thus hard for us to cover. We still welcome any leaks WIPO insiders may have. We can be reached anonymously.
A few weeks ago we noticed that coverage of the EPO had dried up and EPO management is unable to attract any positive press coverage even when it tries to. The only thing we found this week, other than a Cambodian puff piece (mentioned yesterday) is another puff piece from Cambodia, this time from Hang Sokunthea. After lying to journalists, repeatedly in fact, it seems like the only ones the EPO can bamboozle are based in a former French colony, where Benoit Battistelli gets quoted as though he is credible. Cambodia has zero European patents, so there is little reason for anyone there to care. The only relation between France and Cambodia is colonialism and between the EPO and Cambodia it’s Battistelli and Pol Pot (as his fashion of running the Office is being compared to the North Korean regime).
“The only relation between France and Cambodia is colonialism and between the EPO and Cambodia it’s Battistelli and Pol Pot (as his fashion of running the Office is being compared to the North Korean regime).”The persistent habit of lying through Battistelli and his confidants bears some similarity to the past week’s politics in the US. Battistelli relies on so-called “alternative facts” or a parallel (non-existent) reality where the UPC is just about to happen (even when it's not) and human rights abuse are just “reform”; lying about the UPC has become so routinely that those desperate to believe such “alternative facts” (Bastian Best and Mark Richardson for example) already draw a hypothetical “Timetable” for the UPC. These self-fulfilling fantasies of theirs wish to induce defeatism among resistant politicians, convincing them that the UPC is imminent and inevitable. Here is what Richardson wrote:
Following the Brexit vote last June progress on bringing the unitary patent system into operation ground to a halt. The last few weeks however have seen a resumption of activities which was confirmed last week when the Unfied Patent Court Preparatory Committee website posted a new timetable for the UPC Agreement to come into force and the Court to open.
All things being equal the Preparatory Committee sees the Court becoming operational in December 2017. Keeping its end of the bargain, for now, the UK also took the next step in its own ratification process.
The graphic below shows the new timeline. The UPC Prep Committee notes that this timeline is conditional and subject to a number of outside factors that could change things.
The Unfied Patent Court Preparatory Committee Web site is pure propaganda, controlled and owned by Team UPC and all those looking to gain (financially) from it.
We’re dissatisfied to see this continued dissemination of “fake news” about the UPC; basically it’s lobbying framed as “information”. █
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Battistelli’s EPO faces a serious credibility crisis
Reference: Wikipedia on credibility
Summary: The European Patent Office is failing to generate positive media buzz, having possibly alienated much of the media (except media which it literally paid)
THE EPO, which is still embroiled in many scandals, did not manage to silence the European public. In the latest Heise article, for instance, there are well over 50 comments. People are angry about politicians like Maas (never mind Dutch politicians) conveniently failing (or refusing) to uphold the law against Battistelli and his chums.
“Cambodia has zero European patents.”The latest EPO puff pieces, one about the former French colony and another about patent quality, have had virtually no effect or impact. In fact, media all across the world rejected that hogwash and we saw no press coverage of these cheap stunts. The EPO’s Twitter account keeps promoting this mirage of patent quality (lots about it so far this week), but nobody seems to care. Nobody out there should trust the EPO, which habitually lies to journalists (we have given many examples over the years). The only one piece which we found emanating from the latest PR stunts is this puff piece from Kali Kotoski in Cambodia. It’s almost like a rewrite (or ghostwritten, or worse — plagiarism) of what the EPO wrote. It says “Cambodia is set to become the first country in Southeast Asia to recognise and protect European patents after the Minister of Industry and Handicrafts signed an agreement with the European Patent Office (EPO) yesterday.”
We have already explained why this is laughable, even as far back as last year. Cambodia has zero European patents. It might have some patents at the USPTO, but we have not checked. Either way, the pathetic level of EPO PR is quite revealing. There is nothing good left to say. Maybe tomorrow Battistelli will announce some ‘unprecedented’ MoU with Micronesia. █
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Summary: The disastrous policies of Battistelli are rapidly becoming common knowledge across Europe and the entire world, so the EPO pretends that it’s taking feedback into account and maintaining patent quality (a lie, as usual)
IF ONE searches for or looks up (e.g. on the Web) information about patent quality at the EPO, the search results are not exactly flattering. They are worrisome to potential applicants and mortifying to businesses that spent millions of Euros pursuing European Patents (EPs). The EPO’s management is aware of it and right now, in a rather shallow effort to conceal the facts — that Battistelli has essentially demolished quality control and reduced patent quality (EPs) — it is using Orwellian language (warning:
epo.org link), with old favourites such as “Early Certainty”, i.e. telling people something about the outcome before actually properly examining the facts. Battistelli ruined the EPO and no doubt there are attempts to shift blame/pass liability to the staff below him, including examiners whom he constantly abuses, dismisses (based on his personal taste), and bullies against the law — possibly an arrestable offense if he wasn’t hiding under the table surrounded by bodyguards who are a total, utter waste of money.
Here is one part of the ‘prose’ (hogwash) which the EPO filed under “news” today:
The participants appreciated the highly visible results from Early Certainty from Search and welcomed the opportunity to hear more from the Office about how it will implement Early Certainty from Examination and Opposition. EPO representatives stressed the Office’s determination to continuously improve quality levels.
Examiners across the board mock this policy, as they know it cannot accomplish what their job was intended to accomplish. It’s all about speed, obviously compromising quality and thus doing a disservice to applicants.
“The danger to the EPO’s future is very real and even existential.”epi, which bemoaned the EPO's behaviour before its letter simply vanished, is today being cited by the EPO. This page about speeding up examination is cited and the EPO says “These are the flexible options offered by the EPO to help you shorten and/or speed up the grant process” (other than nepotism).
Put in simpler terms, there are ways to undermine the patent examination/application assessment process. How does that help the applicant? To be granted a patent in error (only to be thrown away by a court later) or to be denied a patent in error? You cannot use two women to deliver a baby in 4.5 months. You also cannot just deliver a baby after a few months and hope that an incubator will make up for the absence of a uterus, to use an awkward analogy. Battistelli’s unreasonable expectations are revealing; he never studied issues pertaining to patents and he’s not even qualified to do so. He has absolutely no background in science. He’s just a right-wing politician like Donald Trump and he relies on “alternative facts” like “Early Certainty” in order to shape policy in a disastrous way.
“By that point, however, Battistelli will already have left the EPO — left it all ruined but cynically recalling the “production” figures which he essentially faked by cheating.”Stempeutics, by the way, based on today’s announcement [1, 2], still believes EPs are worth enough to merit press releases. That’s misguided, more so now than ever before.
The danger to the EPO’s future is very real and even existential. The EPO under Battistelli won’t attract many more applications; it’s overpriced and the Office is incompetent (the management). The EPO is still living/surviving on the backlog; it’s dealing with old applications, which are expected to run out some time next year, whereupon a lot of the examiners simply become redundant. By that point, however, Battistelli will already have left the EPO — left it all ruined but cynically recalling the “production” figures which he essentially faked by cheating. █
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False predictions sometimes have an agenda
Reference: How Data Failed Us in Calling an Election (New York Times)
Summary: The ludicrous notion that the UPC is inevitable and just a matter of time is challenged by longtime UPC observers, including Dr. Ingve Björn Stjerna, who wrote an entire book on the subject
WRITING FROM Düsseldorf for the blog of a fellow German, Florian Müller, Stjerna, whom we respect for his honesty on the UPC (unlike other people in his field), makes a list of barriers to the UPC (other than Spain's longstanding opposition). Stjerna already published a book on the subject, but this new article deals specifically with the latest barriers to the UPC (there are more). Here are some excepts:
The European Unified Patent Court: what can still go wrong?
III. Contradictions in recent UK government statements
Nonetheless, the UK government seems to be eager to ratify the UPCA, relying on said concept of emphasizing the UPC’s formal status as an international organization and rather closing their eyes on the Union law obligations inevitably tied to it. After a statement on how the UK intended to proceed in terms of the UPCA after the “Brexit” vote had been long in the waiting, it was announced at the end of November 2016 at the EU Competitiveness Council meeting that the UK “is proceeding with preparations to ratify the Unified Patent Court Agreement”, pointing out that “The UPC itself is not an EU institution, it is an international patent court.” (cf. the press statement here).
This approach was also followed in a recent meeting of the Science and Technology Committee of the UK House of Commons in a statement by the new “Minister of State for Universities, Science, Research and Innovation, Department for Business, Energy and Industrial Strategy”, Joseph Johnson, who is also responsible for intellectual property aspects (cf. footage here, starting at 11:07.22). Indicating once more that the UPC was “not an EU institution” and describing it as being “independent of our membership in the European Union”, Mr Johnson started to flounder when asked whether non-EU members could remain members of the UPCA and just answered: “These are questions which will form part of the bigger discussion around the Brexit negotiations.”
In short, the plan of the UK government appears to be ratifying the UPCA without knowing whether a continued membership will be possible after a withdrawal of the UK from the EU. Bearing in mind the industry’s overarching fundamental need to be provided legal certainty on questions like these, this is a remarkable approach and reaffirms the impression of a reform for a reform’s sake.
IV. Violation of German Constitutional law?
Apart from the “Brexit” implications, further obstructions to the UPCA’s entry into force may well happen in the ratification procedure in Germany, the German ratification, as indicated, also being required for the UPCA to come into effect. The ratification procedure was initiated by the German government at the end of May 2016, with the first reading in the German Parliament taking place in the late evening of 23 June 2016, the day of the “Brexit” vote in the UK, only to be suspended immediately afterwards. Despite its limited practical use due to its apparent bias, the mentioned Gordon/Pascoe Opinion has – unintentionally, as it would seem – underlined the UPCA’s doubtful compatibility with Union law by noting that the political approach to align the two after the aforementioned CJEU decision in 2011 is merely an unworkable legal fiction, thereby joining sides with a number of commentators who have been arguing that the UPCA was incompatible with Union law for a number of reasons all along. More details can be found in the aforementioned article “Unitary patent and court system – The Gordon/Pascoe Opinion and the UPCA’s incompatibility with Union law” here.
The specific relevance of the German ratification proceedings for this aspect lies in the fact that, in Germany, it is, in principle, possible to directly subject any legislative act approving an international Agreement to judicial review by the German Constitutional Court for its compatibility with the German Constitution before it will be allowed to enter into effect. The UPCA’s doubtful compatibility with Union law is only one of a number of aspects on the basis of which its compatibility with the German Constitution might be challenged. Should judicial review indeed be requested on this basis, the German Constitutional Court will usually request a preliminary ruling from the CJEU on the Union law issues in question. Should the CJEU confirm the understanding that the UPCA is incompatible with Union law, this could well be the end of the UPCA, at least in its present form. As the legal effectiveness of the two European regulations on the “unitary patent” and its translation regime is bound to the UPCA’s entry into force, the whole reform would be affected by such finding. Thus, such judicial review procedure could well constitute yet another major obstacle on the way to making the UPC a reality.
IAM, a proponent of the UPC (and the EPO that keeps promoting it), says about the above that it’s a “thought-provoking article. UK UPC ratification looks increasingly like a bargaining tool for a wider negotiation.”
“We don’t expect the UPC to become a reality; not in its current form and certainly not in the UK.”What we quite like is the conclusion of Stjerna. Just like us, he takes note of misleading claims from Team UPC and opportunistic politicians who serve it (people like Michel Barnier). To quote: “Ultimately, different from what political circles and the usual UPC proponents want to make the public believe, the UPCA’s entry into force is not at all secured. Major political as well as legal decisions may still have to be made before the UPCA, and with it the European patent reform, will be allowed to come into effect.”
We don’t expect the UPC to become a reality; not in its current form and certainly not in the UK. Don’t be easily bamboozled by all that fake news yanked out so habitually by Team UPC. █
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Summary: The UPC is dead, deadlocked, stuck, in a limbo and so on; those who claim otherwise are merely lobbying (in disguise of “analysis” or “news”)
OVER the past week we have come across many tweets, blogs, and articles that misinform the public about the UPC. We tackled only a few of these as we lack the time to exhaustively cover and respond to it all. It’s just chaotic.
Meanwhile we’ve noticed the UPC optimists in Germany repeating the lies from Team UPC in the UK. This is spreading to other media and other countries. Also see this new tweet that speaks of “Publication of: Unitary #Patent and the Unified Patent Court: #Europe adopts new tools to promote #innovation… http://fb.me/ug3HvgKi” (nope, it’s not adopting it, that’s still just an idea that’s being floated and faces many barriers from different countries). What the UPC is really about (or for) is to “promote litigation,” as Benjamin Henrion said, responding to that nonsense about “promote #innovation” (empty buzzword that lacks any real meaning in this context).
As another person put it, “if the courts are distributed between UK & EU then it will be unworkable if there is a hard border” (the Brexit barrier to UPC, one among several barriers).
“They’re lying through their teeth and they hope that politicians will let the UPC slide through under the false impression/belief that it’s inevitable and that if they don’t hop on board their country will be left out.”All that wishful thinking and fake news from those looking to profit from the UPC will continue to be tackled here, albeit only selectively due to lack of time/capacity. “Here is a visualisation of what the public will see in December when the UPC goes online,” wrote someone from the EPO, having produced the image at the top. “I’ll believe it when I see it,” wrote this person about the UPC.
Battistelli and the likes of him (Michel Barnier for example) have been promising the UPC for nearly a decade and predicted its imminent commencement for at least half a decade! They’re lying through their teeth and they hope that politicians will let the UPC slide through under the false impression/belief that it’s inevitable and that if they don’t hop on board their country will be left out. █
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This is what the EPO said in 2015 (every year the UPC is “ready” or “about to start”)…
Summary: The nonstop lies or the fake news about the UPC starting “real soon now” don’t quite pass a reality check or a basic assessment based on fundamental concepts, such as the UPC’s facilitation of subordination (to Europe) in the United Kingdom
THERESA May may indeed have just killed the UPC, based on her historic speech which was delivered earlier this week. We already published a couple of articles about it and this one person drew our attention to a a new article by Peter Leung from Bloomberg BNA. “U.K.’s ‘Hard Brexit’ Plans May Undermine Patent Court” says the headline and here is the opening part with a succinct explanation:
The U.K.’s plan to join the proposed Europe-wide patent court could run into conflict with Prime Minister Theresa May’s desire to leave the jurisdiction of the European Union’s highest court.
May’s Jan. 17 speech promised to “bring an end to the jurisdiction of the European Court of Justice in Britain.”
However, decisions by the Court of Justice of the EU (CJEU) will be binding on the Unified Patent Court (UPC).
May’s speech highlights the fact that the fate of the UPC is closely intertwined with the complex negotiations over the U.K.’s withdrawal from the EU.
In November, the U.K. announced that it would ratify the UPC agreement even though it will leave the EU. The new patent court is expected to start operations in 2017 and will have jurisdiction over a new unified patent right to have effect in most of Europe.
“The decision to proceed with ratification should not be seen as pre-empting the U.K.’s objectives or position in the forthcoming negotiations with the EU,” the U.K. Intellectual Property Office told Bloomberg BNA in an emailed statement.
The above, for a change, involved some fact-checking. Many publications these days, especially in the area of patents (or IP, which would mean also trademarks, copyrights etc.), are used/exploited/hijacked by Team UPC and/or the patent microcosm to promote the UPC based on jingoistic lies. They do the same thing to high-profile blogs. We have grown tired of that and recently adopted the label “fake news” in rebutting that noise.
“We need a strike in the UK against the Unitary Patent,” Benjamin Henrion wrote this week, as there is threat of “software patents via the backdoor” (as we covered here before).
“Shall the need arise,” I told him, we can set up a petition and call for protests, but “for now they’re just waffling over a dead UPC…”
There are attempts to fool or to shame the system into the will of UPC hopefuls. Those who are sober realists are being painted as having embraced a more extreme view. Take this new blog post for instance. “Ultimately,” it says, “whether the argument is accepted by the government and argued for strongly will depend not on its detailed, technical merits but whether it is acceptable to enough Tory MPs and right-wing newspapers. There are plenty of other areas of international trade where similar arguments are being raised. For example, representatives of the Law Society and English Bar made similar points about the mutual recognition of court judgments in the UK and EU, post-Brexit, when they gave oral evidence to the House of Lords’ Justice Sub-Committee recently.”
The matter of fact is, businesses in the UK — or Europe as a whole for that matter — do not want the UPC (they're being talked about — not for — by the patent microcosm). Most of them don’t even know what the heck it stands for and what on Earth the UPC is or does. Those who think they know what the UPC would do often base it on misinformation, as they have been lied to by the patent microcosm (see this week's example of fake news in ‘Financial Director’).
The “Unitary Patent,” says Gérald Sédrati-Dinet this week, “after 6 years, arguments I’ve raised on http://unitary-patent.eu are still valid” (links to some other fake news).
Remember he was threatened by the EPO, just like us. These people are bullying dissenting voices; they want to silence UPC antagonists.
It turns out that there is yet another barrier to the UPC, other than Brexit and Spain’s persistent refusal to accept the UPC. According to this tweet, which links to a new article in Polish, “Poland [is] yet not ready to join European Unitary Patent System | WTS Rzecznicy Patentowi @MSZ_RP @PremierRP http://wtspatent.pl/aktualnosci/patent-europejski-ze-skutkiem-jednolitym/”
“And if not dead,” asks the following comment, “is the UPP mortally wounded?”
Well it is dead unless it somehow gets resurrected, which is almost an impossibility in nature, unless one has strong religious beliefs (like a lot of the UPC echo chamber, where people just preach to their choir and say to each other what they want to hear). The UPC is dead/dying. But nobody wants to say it. Here is the full comment:
TM has now ruled out the CJEU having “direct” legal authority in the UK. Does this mean that the unitary patent project has just been killed (despite the UK, rather bizarrely, having previously indicated its willingness to proceed)?
And if not dead, is the UPP mortally wounded? It is now crystal-clear that the UK will no longer be an EU Member State, most likely by 2019. But the current wording of the UPC Agreement and the UP Regulations rather heavily rely upon all “Participating” Member States being EU Members. This affects pretty much every founding principle of the UPP, including issues such as unitary effect / character, legal personality of the UPC and scope / enforcement of decisions of the UPC… and there are no signs yet of any plans to “fix” those problems.
Based upon current signs, it seems that the political will is to press on regardless. But placing such a huge gamble on the system being able to survive Brexit seems absurd. The UK may feel that it will gain influence by getting the UPC up and running before Brexit… but it will then become a hostage to fortune with regard to the inevitable challenge at the CJEU, alleging non-compliance of the UPP with EU law. At that point, the UK will have no representation at the CJEU. So what will the UK then do if the EU Member States decide to kick out the non-EU country in order to preserve the system?
Here is another (longer) comment on the subject, latched just yesterday onto an article from 3 years ago:
Darren: I have an off-the-wall question for you. Can a “unitary” European Patent have unitary effect in a “Participating Member State” (PMS) that has not ratified the UPCA?
I had always presumed that the answer is a clear “no”. However, the rather loose wording used in Reg. 1257/2012 has given me pause for thought. Let me explain why.
Art. 2(a) of Reg. 1257/2012 defines a “PMS” essentially as an EU MS that participates in Enhanced Cooperation under Decision 2011/167/EU (or subsequent decision) in connection with unitary patents. That definition of PMSs clearly includes countries that have not ratified the UPCA.
So this begs the question of whether Reg. 1257/2012 limits the unitary effect of an EPUE to only certain PMSs.
Art. 5(2) is one example of a provision of Reg. 1257/2012 that refers to PMSs in which an EPUE has unitary effect. This of course implies that there can be PMSs in which the EPUE does not have unitary effect… a concept that is confirmed by the 2nd paragraph of Art. 18(2).
However, what is meant in Art. 18(2) by “participating Member States in which the Unified Patent Court has exclusive jurisdiction with regard to European patents with unitary effect”? The UPCA does not talk about “exclusive jurisdiction”, but rather “exclusive competence”. Further, the “exclusive competence”, as defined in Art. 32 UPCA does not have any geographical limits. (The opposite is true for the territorial scope of the decisions of the UPC, as defined by Art. 34 UPCA… but the question of where a decision has effect is completely separate from the question of where a patent has effect.)
Of course, this is where Art. 17(2) or Art. 18(5) of Reg. 1257/2012 could help. Those provisions require PMSs to update the Commission with progress made in updating national laws to ensure no “double” (unitary / national) protection. That is, those countries that do not notify the Commission under Art. 17(2) or 18(5) might be deemed to be PMSs in which there can be no unitary effect.
However, it seems absurd to interpret the territorial effect of an EU Regulation (which, of course, has direct effect regardless of national implementation) by reference to actions taken, or not taken, under national law.
Indeed, if ratification of the UPCA were a prerequisite to an EPUE having unitary effect in a PMS, then why does Reg. 1257/2012 not explicitly say so? After all, ratification progress is mentioned in Art. 18(3)… but with no apparent connection to Art. 18(2).
Also, what are we to make of the mis-match between “exclusive jurisdiction” in Reg. 1257/2012 and “exclusive competence” in the UPCA (bearing in mind the small areas of retained competence of the national courts, as well as the shared competence during the transitional period)?
If we can answer all of the above points, then I suspect that the answer to your original question will also emerge. Indeed, there will likely be a way found for the UPC and national courts to clearly distinguish between EPC Contracting States that are “ratified” PMSs, “non-ratified” PMSs, non-PMS EU MSs and non-EU MSs. But whether that distinction will survive Brexit is another question entirely…
People who are actually in this profession know deep inside that the UPC is unlikely to happen (certainty true in the UK). But what they say publicly is just a futile attempt to persuade young and inexperienced (especially in this area) politicians like Jo Johnson. We oughtn’t let them get away with the spreading of falsehoods. █
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