IRC: #techbytes @ Techrights IRC Network: Friday, February 04, 2022

schestowitz

Re: per-user costs, I’ve expanded on that concept in another post.

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LD Smith

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LD Smith - 5 days ago

schestowitz

Sad to hear that this place is shutting down. I joined over 10 years ago not long after Diaspora started.

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Peluza

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Peluza - 5 days ago

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@Doc Edward Morbius very easy to collect it, we can require anual subscription instead of monthly. That’s 18 eur per year. Now, if somebody does not pay, then he will have access only to the page of downloading his data and/or destroying the account. Hence the user can download the data and move away to other pod but he won’t be allowed to continue posting on this pod unless he pays.

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Waithamai Dragonqueen ✨

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Waithamai Dragonqueen ✨ - 5 days ago

schestowitz

Y’all need to realize that collecting money is not enough. Running a pod also costs time (and nerves); not just for the technical aspects of keeping it up, but also in dealing with users, reacting to feedback and reports, legally assess said reports, etc. The bigger the pod, the more work you need to put into it.

schestowitz

It’s totally fine and understandable if Lukas doesn’t want to provide this any longer. He didn’t say he’s looking for donations. He said he doesn’t want to run this pod anymore, he’d just transfer it to someone else if they want to take it on.

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Doc Edward Morbius

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Doc Edward Morbius - 5 days ago

schestowitz

NB, there’s discussion about a possible transfer with Lukas at this point.

schestowitz

Waiting to see how that progresses.

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>sfb< SigmundFreud'sBartender

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>sfb< SigmundFreud'sBartender - 5 days ago

schestowitz

great news.

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Alien (A23P)

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Alien (A23P) - 4 days ago

schestowitz

whats the status on the discussion?

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Pavithran S

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Pavithran S - 4 days ago

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Waiting to see how that progresses.

schestowitz

Really great news. It reminds me of those days when I literally lost like 2 TB of hard disk data which I colllected from old hard disks. Once the data is lost it was a disaster and would never want it repeating. Here if nothing works I need to find a way to download atleast profile data. Loosing comments is really painful but we cant help it.

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Doc Edward Morbius

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Doc Edward Morbius - 4 days ago

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@Alien (A23P) As stated. It exists.

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mʕ•ﻌ•ʔm jesuiSatire bitPickup

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mʕ•ﻌ•ʔm jesuiSatire bitPickup - 3 days ago

schestowitz

Running a pod also costs time (and nerves); not just for the technical aspects of keeping it up, but also in dealing with users, reacting to feedback and reports, legally assess said reports, etc. The bigger the pod, the more work you need to put into it.

schestowitz

I’d take over that part.

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Who want’s to take over the tec work on the back end?

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Ingmar S. Horn (vaxima)

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Ingmar S. Horn (vaxima) - 3 days ago

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OMG, rescue diaspora* PLS!

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W/ best regards, and hav’ a nice day,

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Euer vaxima

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Cajoh

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Cajoh - 3 days ago

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Is it about finding new podmin and server? Because dissolving of some organization doesn’t mean anything about domain joindiaspora.com. And this pod also earn money each year for servers cost on their own.

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And finally, this is f****** first diaspora pod, website name invinting to this project. It should be alive, at least for that.

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It will be big mistake!

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Cordially yours

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Cajoh(Susenka)

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Doc Edward Morbius

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Doc Edward Morbius - 3 days ago

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@Cajoh The major stumbling block presently is managing any level of contact with the present admin. Last I’m aware (a day or so prior to my comment above), that was in process.

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Cajoh

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Cajoh - 2 days ago

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ok, and in the process you mean what - I suppose the transfering/copying to the new storage?

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Cajoh

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Cajoh - 2 days ago

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it is the question - why it’s all seems to just deleting site and letting of everything without wanting to keep it, that’s like very not pessimistic but more don’t respect to the vibe of the project and I don’t like it.

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mʕ•ﻌ•ʔm jesuiSatire bitPickup

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mʕ•ﻌ•ʔm jesuiSatire bitPickup - a day ago

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@fla

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if you take care of the tec administration i offer my time for the moderation part …

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i already have in mind a provider.

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Pavithran S

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Pavithran S - a day ago

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Its nice to see the community coming to support the pod. Please also suggest alternatives to collect the data in case it gets too late.

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Peluza

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Peluza - about 8 hours ago

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Ok, some updates:

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The domain joindiaspora.com is administed by gandi.net and it will EXPIRE ON APRIL 6TH, 2022.

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The server is a cloud server hosted on Hetzner.

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Fortunately Gandi gives us the opportunity to renew the domain even if we don’t own it. So maybe we can do that :D

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https://joindiaspora.com/posts/22282896

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-TechBytesBot/#techbytes-@podmin@joindiaspora.com: # Hello JoinDiaspora there is some unfortunate news to share. Feneas will be dissolved and as Joindiaspora is one of the services. JD will also be shut down on 1 March. This is unless we can find someone who wants to take over the service. If you think you can handle the task please contact us via [hq@feneas.org](mailto:hq@feneas.org). You can find the original post below or via https://git.feneas.org/feneas/

-TechBytesBot/#techbytes--> git.feneas.org | meetings/agm-minutes-2021-12-09.txt · master · Feneas / association · GitLab

-TechBytesBot/#techbytes--> git.feneas.org | meetings/agm-minutes-2022-01-04.txt · master · Feneas / association · GitLab

-TechBytesBot/#techbytes--> git.feneas.org | Feneas · GitLab

schestowitz

Little update: there has been communication going on behind the scenes (E-mail). I am willing to support this pod with money, tech, and moderation if needed. We need to decide who will do what, but it looks like we'll find a way.

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Feb 04 10:58

schestowitz-TR

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Feb 04 12:06

schestowitz

> Okay, I think this is because your server and the proxy's client

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> (openssl s_client) can't agree on a common protocol version.

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> error:1409442E:SSL routines:ssl3_read_bytes:tlsv1 alert protocol

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> version:../ssl/record/rec_layer_s3.c:1407:SSL alert number 70

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That would explain it...

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> It works when I use GnuTLS as the client (which definitely has TLS1_3

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> support). My OpenSSL is probably too old, though I haven't checked this.

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> I may switch back to GnuTLS, which I originally used. At the time,

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> s_client was more tolerant of misconfigured TLS servers (common in the

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> early days of Gemini).

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Gemini is growing fast. Thanks for putting many of the seeds in it. I've long used your proxy for many things.

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> In the meantime, I've put the source in the link below. It's just a bash

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> script to be run as CGI, which calls an awk script, and a bash script

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> 'gem-get' which is just a wrapper for s_client. There's not much code,

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> so you should be able to edit it to suit your own paths etc. I think

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> everything needed is in the tarball, let me know if anything's missing.

schestowitz

Excellent, thank you! We're taking a look at it now.

schestowitz

Regards,

schestowitz

schestowitz

Some additional personal considerations about the EPO and the pandemics. It is very difficult in these times to make up your own opinion. Looks like having an own opinion isn't at all desired by authorities. The way the pandemics is managed reminds me the managerial success story of the EPO. Do you remember that judge that was publicly defamed as nazi ?

schestowitz

The less we can say is that the actual situation lacks transparency.

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schestowitz

based on the english, not a native speaker of it

Feb 04 12:19

schestowitz

"I have read the the green party in Germany wants the jab to be compulsory . It is their opinion and they are of course free to think so. But what disturbs me is that they demonstrate with banners "FCK NZS" (fuck nazis). This is the level of political acceptance for people that ask questions, so did P.C. the defamed judge."

Feb 04 12:24

schestowitz

"Sincerely yours,"

Feb 04 12:26

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schestowitz

Max Drei

schestowitz

January 27, 2022 at 11:00 pm

schestowitz

Thorsten, on reading your piece, what springs first to mind is the wheeze that politicians often employ, to fend off investigation: they shuffle responsibilities anew, dividing them up between various Ministries with fancy new names.

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Two men in the news this very week are UK Prime Minister Johnson and retired Pope Joseph Ratzinger, both now known to have rather a relaxed relationship with the truth. . Along with the EPO President’s clique……………..: Quis custodiet ipsos custodes?

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Attentive Observer

schestowitz

January 28, 2022 at 12:37 am

schestowitz

At the rate the EPO is going it will resemble more and more to a Mexican army.

schestowitz

Lots of generals, but not much more.

schestowitz

The number of directors and principal directors is getting inflated everywhere in the office but not in DG1, which after all is bringing in the money.

schestowitz

As far as teleworking is considered, the president seems to have faced resistance from a number of contracting states in the last session of the AC in December.

schestowitz

See under the following link the communique of the Central Staff Committee.

http://techrights.org/2022/01/24/revoking-unwanted-vote/

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schestowitz

Is the time when the tail was wagging the dog coming to an end?

-TechBytesBot/#techbytes-techrights.org | Has the Administrative Council Belatedly Realised What Its Job in the European Patent Organisation Really Is? | Techrights

schestowitz

It is to be hoped!

schestowitz

In German there is a nice expression: When the cow feels good she goes on the ice.

schestowitz

Sorry for the cow, but I could not resist.

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Concerned observer

schestowitz

January 28, 2022 at 3:19 pm

schestowitz

Max may well be correct that the intention is to slice and dice so that more responsibilities fall between the cracks … and thereby provide cover for inaction on the part of management. Alternatively, it is possible that the EPO anticipates that the work currently undertaken by HR Services will expand so much that it needs to be divided over three separate Directorates.

schestowitz

Either way, it is hard for outsiders to discern any logic in the decision to allocate responsibility for “Employment law” and “Employee policies” to different Directorates. An optimist might speculate that the President perhaps wants to ensure that the advice on employment law that he receives is reliable (ie with no possibility of having been influenced by anyone in HR Services) and/or to gain more direct control over the resolution of

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legal disputes relating to the EPO’s Service Regulations. On the other hand, a pessimist might fear that more time and resources allocated to “Employment law”, and its separation from “Employee policies”, will make it possible for the EPO to fight even harder in disputes with staff, and to drag them out for even longer … perhaps even including resisting the (proper) implementation of ILO-AT decisions.

schestowitz

Only time will tell. In the meantime, the only thing that it clear is that the EPO has no fear of increasing the number of managers whose salaries will need to be supported by the (dwindling) pool of staff that do the work that generates fee income.

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Experienced Examiner

schestowitz

January 28, 2022 at 5:36 pm

schestowitz

Dear Thorsten,

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a long time ago, the EPO was built on three technical areas, roughly labelled as mechanics, electronics and biology/chemistry. Each area was headed by a Principal Director (PD). Technology evolves (thankfully, or we would be out of business), and the EPO created fourteen clusters. Each cluster was headed by a PD. Eleven new PD posts had been created, dedicated to the patent area.

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Later, the EPO restructured to “Joint Clusters”, cutting the number of PDs in the patent area to seven. The next round of restructuring brought the EPO to three sectors: mobility and mechatronis (M&M), information and communications technology (ICT) and healthcare, biotech & chemistry (HBC). Any resemblance with the earlier structure is pure coincidence. These three sectors are each run by a PD. The latest twist is that there will be one “

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Super PD” or COO.

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This exercise was said to increase quality, efficiency, efficacy, user satisfaction as well as employee motivation and engagement. As a side effect it also created a huge number of high level posts – 11 new PDs – which had to be filled. Most of those posts have been moved away from the patent area. That is why we now have e.g. a Chief Sustainability Officer and the likes.

schestowitz

If you take a look at Article 15 EPC (defining the departments in the EPO), you will not find anything even remotely resembling the positions listed in the blog. This really begs the question why we have them and what their justification is.

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Miss Terio

schestowitz

January 28, 2022 at 5:42 pm

schestowitz

But the past still resonates

https://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4482&p_language_code=EN

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schestowitz

Johann Sebastian Bach’s organ works

schestowitz

January 28, 2022 at 8:32 pm

schestowitz

BWV 54 more appropriate for the EPO management.

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Aliens in Underpants

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January 29, 2022 at 5:59 pm

schestowitz

Indeed, the EPO has become too much corporate and remained too little patent office. About 25-30% of staff are now non-revenue (excluding DG1 (examiner/formalities officers) and BoA). How does that compare to corporate or other large patent offices?

schestowitz

If upper management wishes to run the office like a corporation then bad decisions which cost the EPO many millions (like the move to Haar and back again, or the right of staff to assemble and strike) should also have corporate consequences. The individuals responsible for these decisions are still in the upper floors of the Isar building.

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Anon

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January 31, 2022 at 6:29 pm

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Yes, the EPO has become corporate. Why are you shocked? That’s not new and not just the EPO. After all, Campinos has clients to satisfy. Thirty-eight of them. And they’re more and more difficult to satisfy (they didn’t buy his “new normal”!). Free dental care is not enough anymore.

https://dilbert.com/strip/1995-10-30

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https://dilbert.com/strip/1996-09-13

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-TechBytesBot/#techbytes-dilbert.com | Dilbert Comic Strip on 1995-10-30 | Dilbert by Scott Adams

-TechBytesBot/#techbytes-dilbert.com | Dilbert Comic Strip on 1996-09-13 | Dilbert by Scott Adams

schestowitz

The list is endless.

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Max Drei

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February 1, 2022 at 3:44 pm

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As you say, anon. But are the MS’s “clients”? Aren’t they more like shareholders?

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Under the law, a corporation owes no duty to its employees, its suppliers, its customers, those who have a human interest in the survival of the corporation. Its only duty is to deliver to its shareholders what those shareholders perceive as “value”.

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As has been pointed out, free dental care for AC members was all fine and good but by now is no longer enough. Having been given a taste of rich dividends and assorted pay-outs, the EPO’s shareholders are, it seems, ever more greedy for more.

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http://patentblog.kluweriplaw.com/2022/01/27/new-melodies-at-the-epo-as-of-1-4-2022/

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-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | New Melodies at the EPO as of 1.4.2022? - Kluwer Patent Blog

http://patentblog.kluweriplaw.com/2022/01/27/implementation-of-upc-so-what/

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-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Implementation of UPC: So What - Kluwer Patent Blog

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21 comments

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DXThomas

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January 27, 2022 at 6:13 pm

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No surprise for a French lawyer wanting to concentrate the Central Division in one and the same location that is Paris. In view of the fierce battle which has ended up with the Central (?) Division being in cut in three parts, I would rather think that this no more than wishful thinking. Germany would like it too.

schestowitz

I doubt that the two contenders for the allocation of the duties devoted to London, IT and NL, will accept a “provisional” allocation to either Paris and/or Munich of files in IPC classes A and C. I have not yet seen one convincing or compelling legal basis for such a “provisional” allocation. It is also far from sure that the distribution in Annex II of the UPCA will remain as it is. I could well see that FR and DE will haggle again and

schestowitz

should a third location come, both countries would like to keep files in IPC classes A and C and transfer to the third location other IPC classes.

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One can even have doubts that the UPC is in conformity with union law and Art 6(1) ECHR. Beside the legality of the provisional transfer of duties, a further reason is that a UPC judge can be removed from its post by his peers, but no means of redress are offered to him! See Art 10 of the Statute of the court, Annex I.

schestowitz

It is the first time that I see concerns expressed about the position of the SMEs in the UP/UPC system. Up to now SMEs have been used as a fig leaf by the big internationally active industry and big international active litigation lawyers firms, to hide the fact that they were primarily interested in the UP/UPC system. Only those two groups are sure to profit from the UP/UPC system. An impact of EPLA on the SMEs seems to have been carried out,

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but not for the UP/UPC. In all meetings in which SMEs were informed about the UP/UPC system, they clearly expressed their fears. The level of fees being the strongest deterrent to start with.

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One very important aspect is that 70% of patents are held by proprietors not residing in a UPC contracting state. The UPC opens those extra-European proprietors a single point of attack for European industry in general and European SMEs in particular. Is this really helping European patent holders? I have some serious doubts. When one further sees that the average number of validations of granted European patents is between 3 and 5, the

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necessity of a complicated system like the UPC is not manifest. To my knowledge no study about the economic necessity of the UPC has ever been carried out.

schestowitz

Claiming that the UPC will bring about a movement of harmonization of European Patent Law is anything but sure. Both the UPC and the BA can decide upon the validity of a granted patent. The EPO for a shorter length of time, the UPC for a longer one. As a UP is a patent granted by the EPO, divisions of first instance of the EPO and BA are bound by decisions of the EBA. There is not even a cooperation mechanism foreseen between the two courts.

schestowitz

This is however the case for the EFTA Court and the CJEU. The problem is compounded in that the UP/UPC is first not covering the whole of the EU, and I am not sure that the remaining member states of the EPC will accept case law from an institution they have no influence on it.

schestowitz

I do not expect that the number of oppositions at the EPO will diminish. First there is a big difference in fees and the EPO has streamlined the opposition procedure and the BA are making great efforts to lower their backlog. One should also not forget that the backlog has risen due to the blocking of any recruitment at the BA for many years. One wonders if this was not a deliberate attempt to discreetly favour the UPC.

schestowitz

Last but not least, the costs for simultaneous interpretation are borne by the EPO, whereas at the UPC, they will be costs of the proceedings to be borne by the losing party. That the costs or damages can have ceilings does not fundamentally change the issue.

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Independently from the high basis fees at the UPC and in view of the costs for simultaneous interpretation been borne by the losing party, it is clear that the UP/UPC is for contenders having deep pockets.

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Having practised European integration during my whole active life I am certainly for it, but I am neither convinced nor compelled to think that the UP/UPC system is the right way in matters of IP. There are other, much cheaper, ways to bring about a harmonisation in IP matters.

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Max Drei

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January 27, 2022 at 10:47 pm

schestowitz

Dear DXT, your comment prompted me to check out the firm Ipsilon, in which the French lawyer writer is based. As he writes:

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“……..French decisions are still too little noticed at the international level,….”

schestowitz

Nailed it there, didn’t he? But, good for him, by “talking up” France as a venue for patent litigation, he’s doing his best to attract more notice from now on..

schestowitz

And clearly he’s not alone. Good for you, Mr Thomas, to remind us that it was during the Presidency of a Frenchman at the EPO that the Boards of Appeal at the EPO were subject for many years to a block on recruitment, in turn leading to frustrating lengthening of backlogs in opposition cases at the EPO, in turn supplying materials to those who, whatever their personal reason might have been, were seeking to replace the EPO Boards with the

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Paris-based UPC.

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Suppose that the bulk of cases going to the UPC are pharma/bio cases which would have gone to London. Suppose that the E-tech business area (that was the area allocated to Paris) settles its patent portfolio disputes almost always without going to court. No wonder the legal quarter of Paris, mulling over what the UPC judges seated in Paris are going to be doing with their time, is so keen to acquire London’s share of the UPC business.

schestowitz

Sorry, M. Dhenne, but my sense is that i) the customer knows best, ii) he who pays the piper calls the tune and so, iii) despite the UPC having its “seat” in Paris, no more notice of French decisions in patent cases will be taken in future than is taken now.

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Max Drei

schestowitz

January 27, 2022 at 6:30 pm

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Well, let’s see which EPO Applicants choose which of their patents to make “unitary”. For the time being, I’m guessing that only Big Pharma will opt in, and then only for those of their patents thought NOT to be their crown jewels. Why? Because of fears that one rogue court could strike down the patent rights everywhere, on less than well-founded grounds of invalidity.

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Given that litigation is a last resort, I can well imagine that, for those patent portfolio holders who indeed opt in (to reduce annuity payment budgets), their working assumption will be that disputes between bulk filers will very likely be settled short of a full trial of the action in the UPC (so that venue and forum shopping is very much a secondary consideration).

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In which case, the big international law firms will still be in the money, even though the UPC judges will be kicking their heels, waiting for work, for decades to come. Meanwhile, amongst SME’s, and all those EPO Applicants who validate in 5 or fewer EPC Member States, patent disputes will get resolved as they always were, before the UPC ever came over the horizon.

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Does anybody here see it working out otherwise?

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Extraneous Attorney

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January 27, 2022 at 8:52 pm

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I am more concerned that the UPC might open the door to the sort of low-level, get-rich-quick patent trolling that was once the fad in the United States (before eBay v. MercExchange, that is).

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For instance, let’s assume I set up a shell company in a EU country (say, Estonia, wisdom has it it’s quite easy there). I then assign it a few patents with unitary effect, whatever the subject-matter.

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Then, I proceed to send to 5,000 European SMEs a warning letter, which goes like this: “1) Your activity infringes my patent, because (whatever reason). I could go to my friendly Nordic-Baltic regional division of the UPC and have it hand down a not-very-friendly decision against you. But you can settle this matter once and for all for a one-time license fee of 7,500 EUR, which is reduced to 3,000 EUR if you pay within 45 days. 2) P.S. see

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the attached UPC schedule of fees: even filing a counterclaim for revocation of my patent will cost you at least 11,000 EUR.”

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How many checks will I get in the mail in this scenario? Maybe quite a few, maybe one or two, maybe none at all. I don’t know. But sometimes fighting patent trolls of this sort is far more expensive than just cutting them a check to make them go away. At least that was the rationale for some patent trolling in the US pre-eBay.

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If anyone can explain why the current UPC setup will not encourage this sort of patent trolling, I will be happy to hear from them.

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Max Drei

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January 28, 2022 at 10:51 am

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Nice example of the Law of Unintended Consequences there, Extraneous.

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The legislators in Europe and the Executive Branch (the EU Commission) should take patent trolling seriously. Look what happened in the USA: the courts had to shift (see the eBay case) away from the grant of injunctive relief, to bring the antics of the NPE’s back under control and stop a veritable plague of vexation litigation. They did it by denying the patent owner injunctive relief? Is that what the EU Commission had in mind, when

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setting up the UPC?

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I second the invitation to readers from Extraneous. Tell us why this lucrative and sophisticated scam by an invasion of US-style NPE’s won’t proliferate, under the UPC, and bring Europe’s patent system into disrepute.

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DXThomas

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January 28, 2022 at 12:13 am

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Dear Max Drei,

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As you say very clearly, the number of validations being on average five or less the necessity of a court like the UPC is not manifest at all. On this basis, the saving in annual fees will only be marginal. Beside big pharma, I cannot see many industries needing patent protection in all UPC contracting states.

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Even in the telecom or in the automotive industry with a few well-chosen validation states controlling the bulk of the market is achievable.

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It has been a fallacy from the beginning to claim that the fees for a UP will be lower than for a granted European patent.

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It is only when adding up all the fees for validation in all UPC contracting states and comparing this amount with the UP annual fees that savings are discernible. But this boils down to comparing apples and pears. The present fee structure still takes into account UK fees, although the UK is not any longer participating. The Preparatory Committee has staunchly refused to amend the fee schedule. Probably the budget might then come in the red.

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There is a further problem which has not been taken into consideration or at best belittled. It is the fact that in the beginning judges will bring in their traditional way of acting and thinking. It is something I have noticed in all the mock trials I have been watching. Especially in local divisions which comprise two local judges, the third one will not have a lot to say. And the technical judge will be more or less ignored.

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Any decision of first instance will, at the beginning, be most probably be appealed. It is thus only after a rather long period that it will be possible to see any developments in case law of the UPC.

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By having set the basic fee for nullity nearly double the fee for infringement, it is clear that patent holders are favoured. And only those with deep pockets able to pay the lawyer’s fees.

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Patent robot

schestowitz

January 28, 2022 at 4:02 pm

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Could the AC of the UPC (with a 2/3 majority) amend art. 7.2 UPCA according to art. 87.2 UPCA to adapt the UPC to the EU-UK Brexit agreement (London to another EU city) before the UPCA enters into force?

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Concerned observer

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January 28, 2022 at 4:19 pm

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No. Art. 7(2) UPC only becomes relevant AFTER the UPC Agreement comes into force.

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In the case of substantive amendments to international treaties that are not yet in force, the only legitimate way of proceeding is to conclude a new agreement (even if it only serves to modify the earlier agreement). There is a good reason why this avenue has not been followed, namely the risk that new negotiations over the re-location of the London division will fail to achieve a consensus … thereby killing of the current incarnation of

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the UPC.

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Of course, if there is no agreement between the Participating Member States regarding re-allocation of the cases assigned to the London division, it is impossible to see how the UPC Agreement as it currently stands could be “interpreted” as permitting those cases to be heard in Paris and/or Munich. There are simply no rules or customs of international law that would support such an “interpretation”.

schestowitz

Concerned observer

schestowitz

January 28, 2022 at 4:20 pm

schestowitz

To clarify, I meant to refer to Art 87(2) UPCA in my previous comment.

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Patent robot

schestowitz

January 28, 2022 at 5:43 pm

schestowitz

Thank you for your answers, so I refurmulate my question accordingly:

schestowitz

Could the AC of the UPC (with a 2/3 majority) decide to amend art. 7.2 UPCA according to art. 87.2 UPCA to adapt the UPC to the EU-UK Brexit agreement (London to another EU city), which amendment will be effective on the day the UPCA enters into force?

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Concerned observer

schestowitz

January 31, 2022 at 10:45 am

schestowitz

No. Art 87(2) UPCA provides the AC with the power to make amendments solely for the purpose of bringing the Agreement “into line with an international treaty relating to patents or Union law”.

schestowitz

There is no international treaty relating either to patents or Union law that provides any basis for re-locating the London division of the UPC.

schestowitz

In order to pretend that the Withdrawal Agreement is such an international treaty, the UPC’s advocates would need to preform a(nother) volte-face and argue that it is impossible for a non-EU state to host a division of the UPC. However, even that would not be enough. This is because the Withdrawal Agreement is entirely silent with regard to the UPC, and certainly provides no hints about HOW (ie to where) the London division should

schestowitz

be re-located.

schestowitz

In addition, there would be the matter of timing. An amendment that only occurs AFTER the UPC is up-and-running cannot retroactively cure defects that were present at the moment of the Agreement’s entry into force. The defect regarding Art 7(2) is sufficiently serious as to render the Agreement effectively inoperable.

schestowitz

Also, it is important to remember that all of the Participating Member States will need to agree to any amendment under Art 87(2), as otherwise they can use Art 87(3) to ensure that the amendment does not take effect. Thus, for example, both Italy and the Netherlands would need to agree to a re-allocation of cases to Paris and/or Munich … at a point in time when there is no other “international treaty” that could be relied upon

schestowitz

to make further amendments to the UPCA.

schestowitz

All of the above considerations reinforce the point that the only lawful (and sensible) course of action would be for the Participating Member States to revise, and re-ratify, an amended UPC Agreement that does not include any mention of London. These days, however, it seems that adherence to the rule of law is only a requirement for those of us that are not in government.

schestowitz

Concerned observer

schestowitz

January 31, 2022 at 10:49 am

schestowitz

Remember also that Art 87 is not one of those mentioned in the PAP. Thus, the process of revising the UPCA under Art 87(2) cannot even start until after the UPCA enters into force.

schestowitz

Attentive Observer

schestowitz

January 29, 2022 at 10:30 pm

schestowitz

Art 87(2) UPCA is an article which avoids a new round of negotiations when all contracting states have adopted the same position on either in a patent or in Union law.

schestowitz

The proposed solutij

schestowitz

DXThomas

schestowitz

January 30, 2022 at 3:40 am

schestowitz

Art 87(2) UPCA has a different finality.

schestowitz

It is to be used when all the contracting states have adopted new legal rules relating to a treaty on patents or to Union law.

schestowitz

In such a situation, there is no need to amend the UPCA with a diplomatic conference.

schestowitz

Art 87(2) UPCA is a kind of administrative amendment to the UPCA to align it with legislation already adopted by the contracting states.

schestowitz

Even with the most vivid imagination, it is difficult to see how this Art could be interpreted under Art 31 and 32 VCLT so as to allow a “provisional” transfer to files in IPC classes A and C to the local sections in Paris and /or Munich.

schestowitz

The same applies to Art 7(2) UPCA and Annex II. The crystal clear wording does not allow any other interpretation under Art 31 and 32 VCLT, but the plain words.

schestowitz

Without amending Art 7(2) UPCA, the UPC will start with a heavy Damocles sword hanging over it.

schestowitz

The same

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DXThomas

schestowitz

January 30, 2022 at 3:49 am

schestowitz

On 28.01.2022, I have been following a conference on the UPC organised by the University of Louvain-la-Neuve and the University Saint-Louis in Brussels. The conference was in mixed mode that is in presence and online. The title of the conference was “The UPC system- Remaining weaknesses and possible adjustments”.

schestowitz

A personal resume of this interesting conference, in which the dangers of the UPC system for European SMEs were highlighted, is to be found on LinkedIn under the following link:

https://www.linkedin.com/pulse/interesting-conference-upc-system-dealing-remaining-possible-thomas/

schestowitz

-TechBytesBot/#techbytes-www.linkedin.com | An interesting conference on the UPC system dealing with remaining weaknesses and possible adjustments

schestowitz

I have also started on LinkedIn a series of articles about open issues of UPC who might have an influence on the EPC or on the procedure before the UPC.

schestowitz

The first 3 are to be found on the following links:

https://www.linkedin.com/pulse/open-issues-upc-which-might-affect-epc-1-daniel-x-thomas/

schestowitz

-TechBytesBot/#techbytes-www.linkedin.com | Open issues of the UPC which might affect the EPC - 1

https://www.linkedin.com/pulse/open-issues-upc-which-might-affect-epc-2-daniel-x-thomas/

schestowitz

-TechBytesBot/#techbytes-www.linkedin.com | Open issues of the UPC which might affect the EPC - 2

https://www.linkedin.com/pulse/20220129-open-issues-upc-respect-epc-3-daniel-x-thomas/?published=t

schestowitz

-TechBytesBot/#techbytes-www.linkedin.com | 2022.01.29 - Open issues of the UPC with respect to the EPC - 3

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DXThomas

schestowitz

January 30, 2022 at 3:39 pm

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@Patent Robot

schestowitz

Art 87(2) only applies once the UPCA has entered into force and has a different finality.

schestowitz

It is there to implement in the UPCA amendments relating to Union law or to international treaties relating to patents already implemented in their respective legislation.

schestowitz

It simply avoids, when amending the UPCA, a new round of ratification in the contracting states. Since it is already applicable in the contracting states, a new ratification is not necessary.

schestowitz

Even with a very extensive interpretation of Art 7(2) UPCA and Art 87(2) UPCA under Art 31 and 32 VCLT, it is difficult to find a legal basis for such an amendment of the UPCA.

schestowitz

Why should all the contracting states adapt their national legislation to fit Art 7(2)UPCA in it?

schestowitz

Where do you get the 2/3 quote. It is not foreseen in Art 87(3) UPCA which states:

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“A decision of the Administrative Committee taken on the basis of paragraphs 1 and 2 shall not take effect if a Contracting Member State declares within twelve months of the date of the decision, on the basis of its relevant internal decision-making procedures, that it does not wish to be bound by the decision. In this case, a Review Conference of the Contracting Member States shall be convened.”

schestowitz

DXThomas

schestowitz

January 30, 2022 at 3:59 pm

schestowitz

On 28.01.2022, I have been following a conference on the UPC organised by the University of Louvain-la-Neuve and the University Saint-Louis in Brussels. The .conference was in mixed mode that is in presence and online. The title of the .conference was “The UPC system- Remaining weaknesses and possible adjustments”.

schestowitz

From the programme and the speakers, it was clear that the thrust of the conference would not be really favourable to the UPC. In spite of the absence of some speakers and the audio and video links being sometimes not very stable, the presentations and the discussions were of high level.

schestowitz

A few aspects discussed during this conference can be summarized as follows:

schestowitz

– the UPC poses a big threat to European SMEs, as they can be centrally attacked for instance by non-European NPEs. See Max Drei’s comment above.

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– the lack of a proper EU patent law as neither the EPO nor the UPC are actually within the reach of the EU. Such a proper EU patent should be hosted at the EUIPO in Alicante.

schestowitz

– the interesting possibility to have double protection by using a national patent and a UP in some contracting states, e.g. DE and FR, whereas a double protection national+EP is not offered. Should the UP disappear, the national patent still exists.

schestowitz

– the uncertainty with the UPC could lead to a return to national filings when a patent is only interesting in a few countries

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– the UPC will not bring a harmonisation at national level, which appears necessary and useful

schestowitz

– the UPC does not deal with important aspects like competition law and property

schestowitz

At the end of the seminar two presentations were showing two totally different approaches:

schestowitz

An in-house patent specialist suggested to opt-out as much as possible in view of all the uncertainties linked with the UPC and its non-existing case law. He also drew the attention to the fact that SMEs only producing for their local market could nevertheless be attacked even if they do not export in other countries.

schestowitz

A French lawyer acting in litigation tried to show that SMEs would be better of with a UP, even when it comes to recoverable costs. What he did not say, but was commented by the audience is that this benefit of the UPC would only be present is the SME was not the losing party. And nothing is certain in this respect.

schestowitz

Max Drei

schestowitz

January 31, 2022 at 7:31 pm

schestowitz

Your comment, DXT, about “recoverable costs” is interesting. It set me thinking immediately about the ratio between “recoverable” costs and real costs, really spent, in order not to lose the litigation.

schestowitz

I am not a litigator but my sense is that the ratio varies between 2:1 and 50:1. Since when did Parties in dispute crimp their spending down to that which they can “recover” from the losing side. Litigation is, or should be, a “last resort”. Accordingly, the imperative is to win, regardless what it costs to do so.

schestowitz

So if the UPC route is inherently expensive, and recoverable costs are only a fraction of real costs, then it is a route out of reach of SME’s, even if they have good prospects of using it to win their case.

schestowitz

Reflect on how expensive patent litigation is in the USA. Why is that? Mostly because the big litigation law firms like it that way. And do these firms have any influence on how the UPC develops? You bet they do.

schestowitz

Patent robot

schestowitz

January 31, 2022 at 5:51 pm

schestowitz

I agree that the Brexit agreement is neither an International treaty relating to patents nor Union law (though it is an agreement signed by the EU, so it has some kind of relation to the Union), so that it is not a legally valid starting point for art 87.2 UPCA.

schestowitz

However, I think that if Brexit was Union law then art. 87.2 would apply: the AC (now alive thanks to art. 12 UPCA and the PAP) may vote in the next months (with a 3/4 majority, see art. 12.3 UPCA, not 2/3 which I mentioned by mistake) that art. 7.2 is amended (e.g. London becomes The Hague), which amendment will be effective on the day the UPCA (and art. 87) enters into force.

schestowitz

Of course, art. 87.3 UPCA would apply to said amendment.

schestowitz

Concerned observer

schestowitz

February 1, 2022 at 10:53 am

schestowitz

So, to clarify, you envisage a “fix” for the London problem that relies upon:

schestowitz

– an international agreement that is not relevant to Art 87(2) UPCA (because it does not relate to “patents or Union law”), and that, in any event, does not in any way indicate a SPECIFIC, new location for the London court; and

schestowitz

– the Administrative Committee voting, during the PAP, to exercise an amendment power (under Art 87(2) UPCA) that has not yet been afforded to them.

schestowitz

You will have to forgive me if I remain convinced that this is not a viable solution to the London problem.

schestowitz

Patent robot

schestowitz

February 1, 2022 at 11:29 am

schestowitz

I am also convinced that it is not a viable solution to the London problem (see my previous posts) but I am trying to imagine what will happen during the next months.

schestowitz

The Brexit agreement not being relevant to art. 87.2 UPC is the biggest problem in my opinion.

schestowitz

On the other hand, the AC has full powers now, so it can amend art. 7.2 according to art. 87.2 certainly on day zero, when art. 87.2 will start to be in force, and maybe even earlier (a preliminary decision which will be confirmed on day zero).

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*spazzz is now known as spazz

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https://twitter.com/HarryBo96890762/status/1489700777073561602

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Feb 04 20:55

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-TechBytesBot/#techbytes--> www.reuters.com | Ivermectin shows ‘antiviral effect’ against COVID, Japanese company says | Reuters

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BRING COMMON SENSE BACK 🧠 (@MLuvzyuh): "reuters.com/business/healthc…" | nitter ⚓ https://nitter.eu/MLuvzyuh/status/1489420244015714307 ䷉ #nitter | more in http://schestowitz.com/2022/02/04/#latest

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https://twitter.com/Yakup_genclik/status/1489283901356920834

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