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schestowitz 02 00:12
-TechBytesBot/ | IP Federation expresses concerns about Unified Patent Court - Kluwer Patent BlogJan 02 00:12
schestowitz"Jan 02 00:12
schestowitzJan VerbistJan 02 00:12
schestowitzDECEMBER 26, 2020 AT 1:03 PMJan 02 00:12
schestowitz“we support the UPC being available to non-EU member states including the UK where political will allows.”Jan 02 00:12
schestowitzThe GFCC clarified the UPC is only open to EU member states in its March 2020 press release:Jan 02 00:12
schestowitz 02 00:12
schestowitz“The Agreement is open exclusively to EU Member States.”Jan 02 00:12
-TechBytesBot/ | Bundesverfassungsgericht - Press - Act of Approval to the Agreement on a Unified Patent Court is voidJan 02 00:12
schestowitzAttentive ObserverJan 02 00:12
schestowitzDECEMBER 26, 2020 AT 6:13 PMJan 02 00:12
schestowitzIt is very interesting to note that the Who’s Who of British Industry is regretting Brexit, which is understandable.Jan 02 00:13
schestowitzNot only the IP Federation regrets Brexit but also all the British lawyer firms who had a big finger in the UPC pie. They will not be able to represent before the UPC and all their dreams of increased income is now lost to their friends on the continent.Jan 02 00:13
schestowitzIt is quite ironic to see that the procedure before the UPC has been strongly influenced by the British litigation procedure, but the Brits have now left. Some of the comments heard after Brexit were to remove this aspect from the procedure before the UPC.Jan 02 00:13
schestowitzOn the other hand what the IP Federation wishes is actually the opening of the UPC to non-EU member states. This sounds to me that they would like the EPLA to be revived again. I fear this wish cannot be exhausted, as the EPLA is dead as dead can be (think of the Monthy Pytons), having been killed by the CJEU in its famous opinion C 1/09.Jan 02 00:13
schestowitzWhen the IP Federation thinks that “Landmark decisions of the Unified Court will exert some influence on judicial decisions and policy at the EPO, for example,” it forgets that the EPO is an independent granting authority as well as an authority equally able, albeit only in opposition proceedings, to decide on the validity of granted EP/UP titles. The EPO is only bound by the case law of its boards of appeal, and especially of itsJan 02 00:13
schestowitzEnlarged Board of Appeal, and there is no mechanism which could impose on the Boards case law stemming from other courts.Jan 02 00:13
schestowitzThe possible conflict of case law between the UPC and the Boards of Appeal of the EPO has always been there, but has been superbly ignored. Exactly as the Courts of the EPC member states are not bound by decisions of the boards of appeal of the EPO, the latter are not bound by the former ones. Just think of the differences between the case law of the German Federal Court and the EPO in matters of added subject-matter. Why should it beJan 02 00:13
schestowitzdifferent between the UPC and the boards of appeal of the EPO? Even if it was the opinion of Sir Robin Jacob at one of the Munich conferences on the UPC that the UPC will become the leading court in Europe. By then UK had not withdrawn from the UPC.Jan 02 00:13
schestowitzOn the other hand, the docility of the Enlarged Board of Appeal which went as far as saying that although it approved G 2/12 and G 2/13, a “dynamic” interpretation of those decisions lead to say exactly the opposite in G 3/19, does not bides well for the independence of the boards of appeal of the EPO. This decision was arrived at under the pressure of the Administrative Council and the President of the EPO. Who says that case lawJan 02 00:13
schestowitzof the UPC would be more independent of that of the EPO when the mechanism of designation of its judges and their re-appointment is similar than the one of the members of the boards of appeal.Jan 02 00:13
schestowitzIt might be desirable to have some unification in case law in IP matters, but certainly not what is presently pushed by UPC lobbyists who ignore the letter and the spirit of the treaty they want to see entering into force. And this only to fill their pockets.Jan 02 00:13
schestowitzEuropean Industry advocateJan 02 00:13
schestowitzDECEMBER 27, 2020 AT 11:10 AMJan 02 00:13
schestowitzIsn’t that a sad comment. It’s not a surprise that industry or law firms oppose Brexit: they have openly done so from the outset. Those who support it are mostly not employed in any industry affected by patents, or by trade. Schadenfreude is fun, but not if you are enjoying the discomfort of the wrong people.Jan 02 00:13
schestowitzAs for whether the UPC might one day encompass all EPC member states: it is possible, desirable and not beyond the wit of man, even is certain (changeable) aspects of the UPLA may make need to be changed. There is nothing inherently unconstitutional about international dispute resolution: we arbitrate every day.Jan 02 00:13
schestowitzThe real objection to a wider UPC seems to be narrow self interest of some private practice lawyers who think they personally benefit from a smaller UPC. It’s a mistake to think that the danger of broadening is that the UK firms will take the business: almost all of the UK firms who do patents are also German, French and Dutch: they will be there whatever happens. Keeping Bristows and Powell Gilbert out can’t really be thatJan 02 00:13
schestowitzsignificant. But the advantage of broadening is huge: it puts EPs above US patents as valuable assets.Jan 02 00:13
schestowitzLets keep pushing for greater harmonisation.Jan 02 00:13
schestowitzMaxDreiJan 02 00:13
schestowitzDECEMBER 27, 2020 AT 1:09 PMJan 02 00:13
schestowitzAgreed.Jan 02 00:13
schestowitzJust in case there is any doubt, my criticism of the UPC is not to be taken as resistance to greater harmony in Europe. Quite the reverse.Jan 02 00:13
schestowitzIn fact, now that the UK is out of the EU, the way is clear for the EU to harmonise not only its law on patent validity/patentability, but also its law on patent infringement. For validity, nothing the CJEU could do could improve on the established jurisprudence of the EPO. Leave it alone. Compared with the complexity of validity, trying infringement is a cakewalk. It should be quite easy, now, on the Mainland, with the help of Ireland,Jan 02 00:13
schestowitzto harmonize that.Jan 02 00:13
schestowitzCoincidentally, there is a piece today in a US patent law blog (link below) where you can read how it was China, quite recently, that invented the Problem-Solution Approach to inventive step. Unless Europe (gets its act together” it will be eaten for breakfast by the Rest of the World.Jan 02 00:13
schestowitzWake up Europe. EU Member States, marching in step is the way towards greater prosperity. Allow yourself to be divided and you will be picked off, one-by-one.Jan 02 00:13
schestowitz 02 00:13
schestowitzConcerned observerJan 02 00:13
schestowitzDECEMBER 29, 2020 AT 1:56 PMJan 02 00:13
schestowitzOne of the main objections to the current UPC is that it is legislation created by lawyers for lawyers (and in their own narrow self-interest), which legislation is manifestly deficient in important areas, including democratic legitimacy, access to justice and equality of arms … not to mention clear problems vs EU laws and national constitutions.Jan 02 00:13
schestowitzHarmonisation is a worthy objective. But let us not pretend that it is an objective worth pursuing at any cost, or by way of legislation as horribly compromised as the UPC Agreement. Better to start again from scratch and to design legislation that, in contrast to the UPCA, is actually fit for purpose.Jan 02 00:13
schestowitzMaxDreiJan 02 00:13
schestowitzDECEMBER 27, 2020 AT 12:00 PMJan 02 00:13
schestowitzAttentive, I’m worried about the balance of forces, between those who wish to see stability in Europe, and those who wish actively to de-stabilise it. Those in the latter camp must be rubbing their hands with glee, at the way in which Europe is so busy de-stabilizing its own patent law, all by itself.Jan 02 00:13
schestowitzFor the USA and China, for example, a stable Europe is a nuisance. For all those States lying along the eastern borders of Europe, States with no experience of representative democracy or the Rule of Law, a stable Europe insisting upon those basics of human rights is a constant irritation. For the UK, now fully “open for business” from the world’s worst regimes, their tax-evading citizens and their progeny in need of a “world-Jan 02 00:13
schestowitzbeating” education, the rival attraction of a stable Europe is a nuisance. If Europe’s patent law falls into disarray, this is all grist for their mill, to show how, quite simply, mainland Europe is a Trumpian LOSER.Jan 02 00:13
schestowitzThinking back to what has been achieved since 1973, the triumph of the EPC, it makes me sad to see the present decline. The lobbyists are expert at presenting the interests of their sociopathic corporate clients as being in the interests of society’s “general welfare” (to use the splendid expression found in the Constitution of the USA). Sadly, today, none of the three branches of The State (legislative, adjudicate, administrativeJan 02 00:13
schestowitz is any longer wise enough, or well-informed enough, to see through the blandishments and wiles (and bribes) of the lobbying industry. There is no longer any urge to resist. Instead, there seems to be a race, who can be of most service to the sociopathic moneybags clients of the lobbyists.Jan 02 00:13
schestowitzAttentive ObserverJan 02 00:13
schestowitzDECEMBER 27, 2020 AT 7:27 PMJan 02 00:13
schestowitzI am the last to be against harmonisation in IP matters over the whole of the EU and of Europe in general. But a revived EPLA is not on the table. One might regret it, like Brexit, but the CJEU made clear that it is not compatible with Union law. Although I fully understand “European Industry advocate”, I do not see a possibility to revive the EPLA.Jan 02 00:14
schestowitzDear Max Drei, with the UPC in its present cladding, the way is by no ways “clear for the EU to harmonise its law on patent validity/patentability”. And this is for two reasons: the UPC does not apply to the whole of the EU and there is another instance which is able to decide upon validity of patents having effects within the EU, i.e. the EPO, albeit only during oppositions, but at the fraction of the cost of an action before theJan 02 00:14
schestowitzpresent UPC. Whether UK has left the EU is irrelevant in this matter.Jan 02 00:14
schestowitzThe problem is that by separating the grant of the title with the exploitation of it, the fathers of the EPC made it nearly impossible to unite the granting system under the EPC, which is a convention open to non-EU member states, with the specificity of Union law and its necessary adherence to CJEU rulings valid exclusively within EU member states. The juxtaposition of two instances deciding on validity/patentability is the originalJan 02 00:14
schestowitzsin of the UPC.Jan 02 00:14
schestowitzA real unification could be reached as far infringement is concerned by for instance installing a general bifurcation. A court like the UPC could decide on infringement and issue judgements valid over the whole of the EU, whereby the EPO would decide on validity for all EPC member states, i.e. covering not only EU member states but many more European states.Jan 02 00:14
schestowitzThis would not only need a revision of Art 99 EPC, but also to guarantee the independence of the Boards of Appeal. This is not the case presently under R 12c and 12d. As the judges sitting at the UPC are as well to be re-appointed, their independence is also at stake.Jan 02 00:14
schestowitzFor non-EU members, infringement would still remain a national issue as EPLA is dead.Jan 02 00:14
-TechBytesBot/ | The Inventive Step in Chinese Patent Law Compared With the U.S. Non-Obviousness StandardJan 02 00:14
schestowitzSuch a solution would however not be of liking of all the lawyers firms, and not only in the UK, as they would only be dealing with infringement as is presently the case, and not any longer on validity. It is therefore necessary to highlight “the narrow self-interest of some private practice lawyers who think they personally benefit from a smaller UPC”.Jan 02 00:14
schestowitzThose people claim that the UPC is compatible with EU law, but it has never been tested beforehand. I wonder why the UPC has not be sent to the CJEU for opinion as it was the case for the EPLA.Jan 02 00:14
schestowitzIt has occurred in the past that the Implementing Rules of the EPC were amended after issuance of legislation only valid within the EU, cf. Directive 98/44/EC and the following “Brüstle” decision of the CJEU, cf. R 28(1). Art 28(1) clarified the issues under Art 53(a).Jan 02 00:14
schestowitzR 28(2) was adopted by the Administrative Council of the EPO following a Notice issued by the EU Commission that the EU legislator’s intention when adopting Directive 98/44/EC, was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes. Art 28(2) clarified the issues under Art 53(b) which was however in contradiction with decisions G 2/12 and G 2/13Jan 02 00:14
schestowitzof the EBA. G 3/19 is the result of the unwillingness of the member states of the EPC to amend Art 53(b) accordingly.Jan 02 00:14
schestowitzIn both cases there was a consensus going further than just the EU member states and including all EPC member states.Jan 02 00:14
schestowitzIt is however not guaranteed that such a consensus will be reached in all questions and following any decision of the CJEU or the UPC. Such decisions are not directly applicable with full effect at the EPO, especially now after the Brexit is becoming effective and UK being still a member state of the EPC.Jan 02 00:14
schestowitzHere again the fundamental discrepancy between the grant and the exploitation of the EP is a hurdle which cannot be overcome with Art 142-149 EPC.Jan 02 00:14
schestowitzGerman ExaminerJan 02 00:14
schestowitzDECEMBER 28, 2020 AT 11:33 AMJan 02 00:14
schestowitzDear Attentive,Jan 02 00:14
schestowitzthis could be an idea to think about. But I fear, that the combination of EPC/EPO and UPCA is by now too much of a mess.Jan 02 00:14
schestowitzThe presidents (the current and – especially – the former) have shown they are not to be bound by anything in a legal text. Consequently, the EBoA has stopped to pretend it is a judicial body (“we can not decide, because we fear for our jobs”). So, the current structure certainly can not be kept to decide on an EU-IP-right. But at the moment the BoAs are separated from the EPO: Why should the ECJ agree, that in this case a non-Jan 02 00:14
schestowitzEU-court (with non EU-citizens as judges) is allowed to decide in these matters? And if it is restricted to an EU-court, wht would the other member-states of the EPC say?Jan 02 00:14
schestowitzAs a design-engineer I quickly learned, that you have to start with a clean ans symple plan (KISS-principle). When fleshing out the details, it will invariably get complicated enough. The problem with the UPCA is, that to me it seems the agreement was designed to keep lawyers from every country happy – the goal should have been to design a reliable, fast procedure with reasonable costs. IMHO, this is what industry needs…Jan 02 00:14
schestowitzMaxDreiJan 02 00:14
schestowitzDECEMBER 27, 2020 AT 9:02 PMJan 02 00:14
schestowitzThanks, Attentive. Bifurcation. Indeed. For as long as the UK was an EU Member State, its opposition to bifurcation would have been implacable. That problem has now gone away.Jan 02 00:14
schestowitzI had in mind that the EU Member States could now agree amongst themselves that i) an “EU patent” is not needed ii) within the EU, the final arbiter of the substantive validity of a European patent should be not some new court but, rather, an independent judicial appeal instance of the EPO. The world’s benchmark body of law on patent validity, the 40 years of accumulation of the established case law of the EPO would continue toJan 02 00:14
schestowitzdeliver ever greater legal certainty. Whether or not any one patent lives or dies is not an issue of human rights for which guardians of the dignity of the human being have to die in a ditch. A patent is a time-limited monopoly, a restraint on free trade, an impediment to free competition. If the EPO revokes one patent too many, it’s not the end of the world. Infringement though is a bit different. There, one is talking aboutJan 02 00:14
schestowitzinjunctions, which can bankrupt the employer and put the employees out of work. So let the CJEU think about that.Jan 02 00:14
schestowitzOn infringement, then, I had in mind that the CJEU would be the final arbiter. Compared with the complexity of deciding on validity (far too complex for the CJEU) decisions about what infringes are at kindergarten level and because every case has different facts the consequences of poorly reasoned decisions on infringement are less corrosive to legal certainty.Jan 02 00:14
schestowitzAlso, I haven’t worked out why Art 99 EPC would have to be amended. To me, it is not self-evident.Jan 02 00:14
schestowitzGerman ExaminerJan 02 00:14
schestowitzDECEMBER 28, 2020 AT 11:41 AMJan 02 00:14
schestowitzDear MaxDrei,Jan 02 00:14
schestowitzyou keep on saying that the BoA jurispridence is the world’s best. I guess not everyone is of this opinion. While the BoA decisions are in many areas quite good, IMO there are also areas where they are not. So at least where the EPC is ignored, this needs to be improved. Also, IMO, regarding obviousness, the PSA would have to be improved, too. At the moment it is often too restrictive (resulting in too many patents, but that probablyJan 02 00:14
schestowitzwas one of the goals…).Jan 02 00:14
schestowitzepo watcherJan 02 00:14
schestowitzDECEMBER 28, 2020 AT 11:23 AMJan 02 00:14
schestowitz@Attentive ObserverJan 02 00:14
schestowitzIt does a disservice to the EPO Boards of Appeal to view the creation of the UPC primarily in terms of competition to be the leading court and threat to the independence of the BOAs, thus pitting the BOAs against the future UPC. The UPC will be more than happy to draw on the impressive body of case law of the BOA. Owing to its broader competence encompassing infringement and related matters and the ability to take into account generalJan 02 00:14
schestowitzinterest issues , the UPC will bring significant insights which the BOAs will be happy to consider.Jan 02 00:15
schestowitzIndependence of the BOAs should not imply that they must be impervious to influences from judicial bodies whether national courts or the CJEU, on the contrary such influences are positive. For example the BOAs pay due attention to cases where European patents are struck down by a national court.Jan 02 00:15
schestowitzAttentive ObserverJan 02 00:15
schestowitzDECEMBER 28, 2020 AT 9:15 PMJan 02 00:15
schestowitzDear “epo (?) watcher”, or better UPC fan,Jan 02 00:15
schestowitzThe proponents of the UPC themselves have viewed “the creation of the UPC primarily in terms of competition to be the leading court”, and in their opinion the Boards of Appeal of the EPO should follow the case law of the UPC, e.g. Sir Robin Jacob in one of the Munich UPC conferences.Jan 02 00:15
schestowitzIn view of the above where do you take that the “UPC will be more than happy to draw on the impressive body of case law of the BOA”? How can you be sure that on the one hand, the UPC will have “the ability to take into account general interest issues (what do you actually mean?)” and on the other hand, “the UPC will bring significant insights which the BOAs will be happy to consider”? Please explain! Presently these are onlyJan 02 00:15
schestowitzempty words.Jan 02 00:15
schestowitzI have been witnessing some mock trials according to the UPC, and I was struck by the heavy weight given to national traditions by judges appearing in such mock trials. You just need two judges of one nationality in a panel composed of three judges to tip the balance in favour of their national tradition. The technical judge in the panel was more or less ignored and the opinion of the third one was not really taken into account.Jan 02 00:15
schestowitzIt will take ages in order to arrive to a true international setting of the UPC, and the Court of Appeal will have an important role to play.Jan 02 00:15
schestowitzI never claimed that “independence of the BOAs [implies] that they must be impervious to influences from judicial bodies whether national courts or the CJEU”. Numerous decisions of the BOAs and the EBA mention national case law. But it does not mean that they have to follow it. That those national decisions can be a source of inspiration is not at stake.Jan 02 00:15
schestowitzWhen I speak of the independence of the BOAs, I refer to R 12c and 12d EPC. The mere fact that members of the BOAs have to show a certain “performance” (not even publicly known) in order to be re-appointed is enough to raise serious doubts about their independence.Jan 02 00:15
schestowitzWhen one looks at G 3/19 and the contortions needed by the EBA with the “dynamic” interpretation of its own case law in order to arrive at a result which pleased the head of the EPO and the Administrative Council, those doubts are comforted.Jan 02 00:15
schestowitzThe same applies to the members of the UPC which also need to be reappointed.Jan 02 00:15
schestowitzI would also like to put reasonable doubts for the necessity of a court like the UPC in view of the average number of validations of granted European patents in the participating member states of the UPC. Do at best 5 validations in the EU warrant setting up something as complicated as the UPC? I think not.Jan 02 00:15
schestowitzPositive effects of the UP/UPC system have always been heralded, but I have never seen reliable figures. Merely a study of the EPO with 12, in words twelve, successful stories of SMEs and IP. A bit little to be convinced, when on the other hand they are reliable studies to prove the contrary.Jan 02 00:15
schestowitzAttentive ObserverJan 02 00:15
schestowitzDECEMBER 28, 2020 AT 9:17 PMJan 02 00:15
schestowitzDear Max Drei,Jan 02 00:15
schestowitzAs far Art 99 EPC is concerned, it would be useful not to limit the opposition period to nine months. After all the proprietor is allowed to limit its patent over the whole life span of its patent. Why should then the opposition period be limited to 9 months.Jan 02 00:15
schestowitzAs far as the utility of a UP is concerned see above. It is not in my humble opinion. The few proprietors validating in all member states of the EPC can afford multiple litigations if necessity arises. With the notion of exhaustion of rights European patent owners have been living quite peacefully and it is not the few litigations, e.g. pemetrexed, which can warrant setting up the UPC.Jan 02 00:15
schestowitzAttentive ObserverJan 02 00:15
schestowitzDECEMBER 28, 2020 AT 9:25 PMJan 02 00:15
schestowitzDear German examiner,Jan 02 00:15
schestowitzI can agree with you point when you question “Why should the ECJ agree, that in this case a non-EU-court (with non EU-citizens as judges) is allowed to decide in these matters? And if it is restricted to an EU-court, what would the other member-states of the EPC say?”Jan 02 00:15
schestowitzAs explained before, this is the result of the separation between grant and exploitation of the patent decided by the founders of the EPC. By deciding after four unsuccessful attempts to set up a European Patent for the EU (European Community at the time) and the fear of being flooded by unexamined patents arriving via the PCT, the founders of the EPC did the best they could at the time in opening the European patent to non-EU memberJan 02 00:15
schestowitzstates.Jan 02 00:15
schestowitzThe PSA is not the problem. It is a tool, no more, no less, and in my opinion a quite useful one.Jan 02 00:15
schestowitzThe problem is the inordinate pressure exerted by the management on the examiners to deal with as much cases in the shortest time possible. Just have a look at the number of patents revoked or severely limited after an opposition, or declared null in national proceedings.Jan 02 00:15
schestowitzEven if only 5% of European patents are subjected to an opposition, in two thirds of the cases the patent as granted comes out maimed. Even if oppositions are not evenly distributed in all fields of technique, a simple extrapolation shows that there is a lot to be done, contrary to the claims of the management that quality is steadily increasing. Very few oppositions are actually based on prior art the EPO could not have had knowledgeJan 02 00:15
schestowitzwhen it granted a patent. This is a cause of concern.Jan 02 00:15
schestowitzThe UPC is no more than a revival of the dead borne Luxembourg convention of 1975 which had at least the advantage of establishing a Unitary Patent for the whole of the EU. The UPC does not even reach this goal.Jan 02 00:15
schestowitzPatent robotJan 02 00:15
schestowitzDECEMBER 29, 2020 AT 10:41 AMJan 02 00:15
schestowitzThe problem with oppositions at the EPO is that they take a very long time and have only one round of writs, which is certainly not enough, so that everything is done during oral proceedings, where parties try (and usually achieve) to submit new evidence.Jan 02 00:15
schestowitzThe UPC revocation proceedings (see page 142 of the RoP) are much faster, better structured and also include two rounds of writs.Jan 02 00:15
schestowitzAnother issue with EPO oppositions is that the ODs (as well as the BoAs and the EBoA) are NOT independent from the EPO (the ODs are always biased in favor of the proprietor).Jan 02 00:15
schestowitzThus, the UPC is much better than the EPO, in terms of revocation proceedings.Jan 02 00:15
schestowitzConcerned observerJan 02 00:15
schestowitzDECEMBER 30, 2020 AT 5:11 PMJan 02 00:15
schestowitzThe most obvious (and simple) solution to the problems that you highlight would be revision of the EPC to make the Boards of Appeal truly independent of the first instance departments of the EPO. By making tweaks to their funding and Rules of Procedure, the Boards could also be transformed into a more typical “judicial” instance, capable of disposing of cases in much shorter order.Jan 02 00:16
schestowitzThe effort required to achieve these changes would be MUCH less (by orders of magnitude) than the effort already expended upon the UPC. It would also be less than the effort expended upon generation of the numerous iterations of far-fetched legal arguments that have been required to keep the current UPC alive ever since 2016. Further, if it enabled the Boards of Appeal to make preliminary references to the CJEU under Article 267 TFEU (Jan 02 00:16
schestowitzfor example, by way of a procedure involving a national court), amendment of the EPC would provide the added advantage of avoiding the constitutional bear traps that await the UPC.Jan 02 00:16
schestowitzSo why expend so much effort on the UPC? Is the level of disharmony within Europe on matters of infringement so problematic that the UPC is the only possible answer? Before adopting that solution, I would have thought that the first port of call really ought to be a proper attempt a harmonising national laws on patent infringement. A stand-alone international treaty (NOT involving the creation of a new court) ought to be perfectlyJan 02 00:16
schestowitzcapable of achieving that objective… though this would require more effort on the part of the Member States than was seen in many half-hearted attempts at bringing national laws into line with the UPCA.Jan 02 00:16
schestowitzIf national laws were fully harmonised, then mutual recognition of judgements would be so much more straightforward. No need for any new courts. Then again, creating a low cost, user-friendly, fully integrated, highly flexible, robust and fit-for-purpose litigation system in Europe was never really the key driving force behind the UPC, was it?Jan 02 00:16
schestowitzAttentive ObserverJan 02 00:16
schestowitzDECEMBER 30, 2020 AT 11:14 PMJan 02 00:16
schestowitzThanks to Concerned Observer for your comments. The boards of appeal need true independence and not merely an increase of the perception of their independence….Jan 02 00:16
schestowitzThe level of disharmony within Europe on matters of infringement is not problematic and in view of the limited number of validations in EPCA member states it is certainly not a problem which warrants the creation of the specialised court which decisions are, on top, only valid in part of the EU.Jan 02 00:16
schestowitzThe number of litigations extending over a plurality of member states of the EPC or of the UPCA is negligible. One recent example is the famous pemetrexed case, and for good or bad reasons, courts in the different contracting states came to similar conclusions. This shows that there is no necessity for the UPC beside the fact that large internationally active lawyers firms expect an increase in their revenues.Jan 02 00:16
schestowitzAll the UPC lobbyists managed to fool the politicians exactly like the proponents of free software managed to obtain from the European Parliament a decision against the patentability of software. In both cases, politicians have been induced to take decisions whose significance they did not understand and for which they did not spot the respective hidden agendas.Jan 02 00:16
schestowitzBefore any investment it is usual to carry out a cost/benefit analysis. Why has this not been done when the idea of the UPCA came to light? See above. When one considers the possible fee for a supranational litigation, the answer is blatant. But this is not in the interest of European industry and certainly not in that of European SMEs.Jan 02 00:16
schestowitzRegular meetings of judges dealing with infringement in EPC member states would bring about harmonisation in matters of infringement at a fraction of the cost of the UPC. But some judges would then be deprived of the nice salaries they expect to get at the UPC.A German colleague repeatedly said to me that some national judges are totting up the salaries they lose due to the belated entry into force of the UPC…Jan 02 00:16
schestowitzAttentive ObserverJan 02 00:16
schestowitzDECEMBER 30, 2020 AT 8:23 PMJan 02 00:16
schestowitzDear Patent Robot,Jan 02 00:16
schestowitzYou are actually parroting what Sir Robin Jacob said in one of the Munich UPC conferences: opposition at the EPO is like waiting for Godot. I heard it myself, and I was not the only one.Jan 02 00:16
schestowitzI would merely like to draw your attention that since July 2016 the opposition procedure has been streamlined and at least opposition divisions deal pretty quickly with oppositions. The bottleneck is at the boards of appeal, but this is not the fault of the boards but of the previous head of the EPO who wanted to put pressure on the boards by not allowing them to recruit.Jan 02 00:16
schestowitzThis has changed, but the backlog is still there and needs to be resorbed. This is also one of the reasons for adopting the RPBA2020.Jan 02 00:16
schestowitzFirst question: why do you need two writs in opposition/revocation? Experience shows that the more writs are exchanged in opposition, the less clear the situation becomes. Normally the OD waits to see if the opponent replies to the writ in reply to the opposition. By summoning to OP as early as possible, the ping-pong between parties is killed in the nub. Furthermore, the strict application of Art 114(2) in first instance and in appealJan 02 00:16
schestowitzthrough the RPBA helps to achieve a streamlined procedure.Jan 02 00:16
schestowitzAt least the EPO opposition system has the advantage to exist and to be cheap as far as the fees are concerned: 815 € at the EPO vs. 20 000 € basic fee at the UPC. At the EPO each party bears its own costs in opposition and a different apportionment is only decided for reasons of equity. At the EPO the costs for simultaneous interpretation are borne by the EPO and are not charged to the succumbing party as in the UPC.Jan 02 00:16
schestowitzI strongly beg to disagree when you state that the ODs and the BAs are biased in favour of the proprietors. Revoking a patent in opposition is not something to be taken lightly as the proprietor loses everything, whereas the opponent can still act in nullity before a national court should its opposition not be successful. On the other hand since in 2/3 of the oppositions the patent comes out maimed, where do you see a bias in favour ofJan 02 00:16
schestowitzthe proprietor?Jan 02 00:16
schestowitzAn OD will take great care when revoking a patent. A patent cannot be revoked for flimsy reasons and simply to please opponents. If a granted patent has no raison d’être, then a patent has to be revoked, and this is certainly the case, but the opponent has to do its part of the job.Jan 02 00:16
schestowitzAs the UPC does not even exist, I find it quite daring to claim that “the UPC is much better than the EPO, in terms of revocation proceedings”. Or do I detect some form of wishful thinking?Jan 02 00:16
schestowitzWhen you see for instance the way the German Federal Court (BGH) deals with added-matter in nullity proceedings, there you can say that there is a bias in favour of the patentee, not at the EPO. In general the BGH is only revoking a patent when it cannot do otherwise. This is a complaint I heard so often from German colleagues.Jan 02 00:16
schestowitz"Jan 02 00:16
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schestowitz*nod*.  I seem to have triggered xxxxxxx's rage a few times myself.  Tough.Jan 02 01:56
schestowitzBut though I don't even know his first name either, he appears to haveJan 02 01:56
schestowitzhis heart at the right place.  He's guilty of writing long and unfocusedJan 02 01:56
schestowitzpieces (like myself; I often even wonder if some opponents within theJan 02 01:56
schestowitzFSF think he's just an alias I use), which makes it very unlikely thatJan 02 01:56
schestowitze.g. Richard will read enough of his writings to get the context of theJan 02 01:56
schestowitzsuspicions he raises.  So Richard only gets the most egregious bits,Jan 02 01:56
schestowitzforwarded probably by someone who wishes to feed discord among us, andJan 02 01:56
schestowitzthus he gets the notion that xxxxx is against the FSF, rather than againstJan 02 01:56
schestowitzthe coup that took place in the FS community, including the FSF.  I'veJan 02 01:56
schestowitzstarted trying to explain that, to Richard and to Dora, but they seem toJan 02 01:56
schestowitzhave got the notion that xxxxx is anti-GNU, and wishes to replace/takeJan 02 01:56
schestowitzover GNU, because he's in love with BSD.  What a mess :-/Jan 02 01:56
schestowitzAnyway, having managed to separate you/techrights from xxxx's guest postsJan 02 01:56
schestowitzwas a big win, and a significant step already.  I'll get back to givingJan 02 01:56
schestowitzthem xxxxx's context eventually, though xxxxx seems to be angry at me again,Jan 02 01:56
schestowitzfor unspecified reasons :-/Jan 02 01:56
schestowitz>> I suppose you guys might be better able to clarify your positions andJan 02 01:56
schestowitz>> dispell the notions of hostility.  Would you mind if I got you directlyJan 02 01:56
schestowitz>> in touch with him and one very close supporter who seem to share thisJan 02 01:56
schestowitz>> (IMHO incorrect) notion of hostility directed by you at him?Jan 02 01:56
schestowitz> Yes, please do.Jan 02 01:56
schestowitzGiven Richard's change of disposition towards you, I'm inclined toJan 02 01:56
schestowitzconsider the issue largely solved, and the communication channel betweenJan 02 01:56
schestowitzyou and him open for productive conversation.Jan 02 01:57
schestowitzNot sure yet about how to proceed WRT xxxx and Richard and Dora.  PerhapsJan 02 01:57
schestowitzyou, who presumably read xxxxx's posts before posting them, has enoughJan 02 01:57
schestowitzcontext to be able to explain to Richard and Dora what he's up to, thatJan 02 01:57
schestowitzhe doesn't (seem to) wish to replace or take over GNU, that his currentJan 02 01:57
schestowitzlove of BSD is just out of disappointment and concern for the future ofJan 02 01:57
schestowitzthe kernel Linux, that his verbal attacks on the FSF are attacks on theJan 02 01:57
schestowitzleaders of the internal coup and the direction they've taken it, andJan 02 01:57
schestowitzthat, as much as Richard perceives the FSF as his legacy, xxxx is aimingJan 02 01:57
schestowitzat defending Richard's legacy from the coup, rather than attacking it.Jan 02 01:57
schestowitzThese are points I intend to write about, or talk to Richard about.  ItJan 02 01:57
schestowitzmight help to get these points corroborated by someone else in the knowJan 02 01:57
schestowitz;-)Jan 02 01:57
schestowitzThanks again, and may 2021 be a happier GNU year!Jan 02 01:57
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schestowitz> EXTREMELY IMPORTANT:Jan 02 02:22
schestowitz>Jan 02 02:22
schestowitz> The information above is not protected by a common password such asJan 02 02:22
schestowitz> documentation from xxxxxxx, that means credentials are required forJan 02 02:22
schestowitz> accessing the xxxxxxx site. The xxxxxxx xxxxxxx may thereforeJan 02 02:22
schestowitz> find out who accessed the site and when....and the xxxxxxx hasJan 02 02:22
schestowitz> close ties to the office...Thus I ask you to delay the publication ofJan 02 02:22
schestowitz> the content by a reasonable amount of time such as January or later.Jan 02 02:22
schestowitz> Fell free to ask details if required.Jan 02 02:22
schestowitzNoted, and thank you very much for the courage to pass that on. I did not even know that the xxxxxx had responded (no good excuse for ripping off old people in a time of crisis).Jan 02 02:22
schestowitz--------------Jan 02 02:22
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schestowitzx 02 16:37
-TechBytesBot/ | The story of a divorce - How Brexit happened | Britain | The EconomistJan 02 16:37
schestowitz# sweeps the anti-EU social control media campaigns under the rugJan 02 16:37
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