IRC: #techbytes @ Techrights IRC Network: Tuesday, December 14, 2021

-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | ‘Unitary Patent system is an arbitrary and ailing hybrid monster mix’ - Kluwer Patent Blog

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backing up comments:

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(they censor some, sometimes...)

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Angela Hernandez

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DECEMBER 9, 2021 AT 6:27 PM

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His paper was mentioned in Techrights some days ago:

http://techrights.org/2021/12/01/thomas-jaeger-in-grur/

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http://techrights.org/wp-content/uploads/2021/12/the-benelux-alternative-to-the-upc.pdf

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-TechBytesBot/#techbytes-techrights.org | Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“ | Techrights

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If you read it all, it is clear that the UPC court system is outside of the design of the European Union, and cannot interpret EU law, as the CJEU only talks to the courts of the Member States:

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“the narrative was invented that the UPC is a court common to the Member States. It is not, of course, because the functioning and jurisdiction of the court remained the same as envisaged for the EEUPC.”

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He then cites the CJEU’s Miles judgement, which explains why the Benelux court is acceptable, and other models like the UPCA are not (lack of functional links with the national Courts of the Member States):

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“‘It is true that the Court of Justice has held, in … Dior, that … a court common to a number of Member States, such as the Benelux Court of Justice, [is] able to submit questions to the Court of Justice, in the same way as courts or tribunals of any of those Member States. … However, the Complaints Board [at hand] is not such a court common to … Member States[.] Whereas the Benelux Court … procedure … is a step in the proceedings

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before the national courts leading to definitive interpretations of common Benelux legal rules …, the Complaints Board does not have any such links with the judicial systems of the Member States. … Moreover, although the Complaints Board was created by all the Member States and by the Union, the fact remains that it is a body of an international organisation which, despite the functional links which it has with the Union, remains formally

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distinct from it and from those Member

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States.”

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The UPCA should have been sent to the CJEU for an opinion, but the article TFEU 218(11) which was used in 2009 to obtain the 1/09 opinion could not be used anymore to obtain another opinion, since this article of the treaty is for treaties with non-EU nations (EU and other countries, like for ex Canada).

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André Frans

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DECEMBER 10, 2021 AT 10:58 AM

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The German Governement never provided an analysis of the compatibility of the UPCA with EU law:

https://www.bristowsupc.com/latest-news/german-government-responds-to-fdp-s-questions-on-upc/

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“Has the government examined the compatibility of the UPCA with the Basic Law, in particular the fundamental rights, and with Union law, and if so, with regard to what aspects were these checked? The government replied that these were examined comprehensively.”

-TechBytesBot/#techbytes-www.bristowsupc.com | German government responds to FDP’s questions on UPC | Latest news | Unified Patent Court and Unitary Patent

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This CJEU jurisprudence on “common courts” should have appeared in such report, this might be a gross maladministration from the German Ministry of Justice Lamberts.

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Concerned observer

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DECEMBER 10, 2021 AT 1:07 PM

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André, you assume that mere logic and legal precedent will prevent the CJEU from ruling that, despite all appearances to the contrary, the UPC is a “court common to the Member States”. As we have witnessed over the years, a sensible and rational approach to interpreting the (case) law is the last thing that we can expect to see when it comes to the UPC.

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Andre Frans

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DECEMBER 10, 2021 AT 1:45 PM

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“As we have witnessed over the years, a sensible and rational approach to interpreting the (case) law is the last thing that we can expect to see when it comes to the UPC.”

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That should be clarified BEFORE the UPC enters into force. As mentioned above, the CJEU is not competent to review deals between Member States, the 1/09 was done under Art218 TFUE for deals with non-EU states. But I guess any Member State could bring the question to the CJUE using other articles of the EU treaties.

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Concerned observer

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DECEMBER 10, 2021 AT 3:16 PM

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André, what should happen and what will actually happen are two entirely separate matters.

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Please remember, the strategy that the UPC’s supporters are using here is to bring the UPC to life and then to make the courts nervous about bringing down an entire system upon which so much time, effort and energy has already been expended. Essentially, it is the legal equivalent of boots-on-the ground diplomacy.

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Andre Frans

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DECEMBER 10, 2021 AT 5:10 PM

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“courts nervous about bringing down an entire system upon which so much time, effort and energy has already been expended.”

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Exactly. And industry has its entries at the CJEU via ex-members of political parties, as that was revealed recently by Liberation journalists with members of the EPP club.

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The same collusion with lobbyists happened with AG Melchior Wathelet with his opinion in “Achmea”, where he proposed to let those controversial intra-EU ISDS tribunals being recognised as “common courts of the Member States”. Hopefully the full court did not follow him, maybe they were aware of his conflict of interest.

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Concerned observer

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DECEMBER 10, 2021 AT 12:08 PM

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A number of perceptive and well-reasoned comments from Dr Jaeger. Also, it is hard to figure out how, in the light of the CJEU’s Miles judgement, the UPC could possibly survive even if it were brought into force.

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However, having closely observed the passage of events over the past 5 years or so, it seems to me that even such clear signs of impending doom are meaningless in the face of the strong political support that the UPC enjoys.

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Adding another, highly complex layer to the litigation system in Europe without first taking steps to TRULY harmonise the laws governing infringement was always a bonkers idea that would benefit no one other than (litigation) lawyers, litigants with deep pockets and patents of questionable validity, and, due to the additional fee income that they will reap, the EPO.

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Simply having a “unitary” patent (litigation) system does not automatically reduce barriers to obtaining and enforcing (or revoking) patent rights. One need only look over the pond to see that, despite having such a system, patent litigation is most definitely not for the fainthearted (or those without very substantial financial backing). This is because, in essence, US patent laws are written by lawyers for the benefit of layers. In this sense,

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the UPC very literally apes the US system. It even goes beyond that by placing responsibility for creation of the rules under the control of an (unaccountable) Preparative Committee whose members include lawyers from the very firms that are set to benefit from the UPC.

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Letting the fox loose in the hen house is never the best approach to crafting legislation. Doing this for the purpose of crafting international treaties that create bodies that have significant powers but that are essentially unaccountable is certainly a recipe for disaster.

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Max Drei

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DECEMBER 10, 2021 AT 2:55 PM

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I feel obliged to post my support for what Concerned Observer writes. I’m retired so no longer have any skin in the game. But having spent most of my 40 years of practice in the sort of private practice law firms likely to benefit from the UPCA, I concur wholeheartedly with the notion that if you want efficient production in the hen house, to the benefit of society and the promotion of the useful art of golden nest egg-laying, to deliver future

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prosperity for all, the last thing one does is to give the fox the job of running the hen house.

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Foxes are well-known to be cunning. Less well-known are their consumate skills as lobbyists, if not yet in academic circles in Vienna then certainly on the EU campus in Brussels.

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DECEMBER 10, 2021 AT 6:57 PM

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I live in Brussels with a friend working in EU commission, present when UPC was a hot topic (much less now) and referring to the discussions held by “foxes” as being often driven by lowering annuity cost, a problem that would have been solved by correcting some national practices ( such those in Austria indeed) or introducing other mechanism for a more coherent allocation of fees and revenues among patent offices. I do agree that EU should have

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been more innovative to support IP tools more adapted to present challenges and available tools (a digital EU utility model?). The consolidation of jurisdiction and of civil law claims seems to me alike the harmonisation of fiscal and social policies among EU members, something too difficult to even mention but needing a generation change (or a lot of people clustering at place Schuman menacing to enter in EU commission) before something happens

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Francine DELGOFFE

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DECEMBER 10, 2021 AT 7:30 PM

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“a lot of people clustering at place Schuman menacing to enter in EU commission”

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European Commission and Mr Breton are responsible when it comes to infringements of EU law (including such CJEU jurisprudence), but they are driven by friends of “industry” (BusinessEurope, MEDEF, etc…). Like the story with Poland where the Commission was aware of the problems, they did not had the guts to take them to court, the CJEU had to do it on its own.

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Max Drei

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DECEMBER 10, 2021 AT 10:10 PM

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How interesting, from LF. One can imagine how horror stories of outrageous aggregated annuity costs, peddled by the lobbyists, would play well with politicians whose outlook is skewed by the skilful attentions of well-financed but seriously biassed lobbyists. I can well imagine how those same politicians found it too burdensome to seek out unbiassed expert voices from within the patent profession for a disinterested view how much of a “problem”

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was the ascending scale of annuities, through the 20 year life of a patent.

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Eminent patents judge Robin Jacob explained how unused trademarks lingering for too long on the Trademarks Register should be understood as a menace, as “abandoned vessels clogging up the shipping lanes of trade”. With patents, it is right and good that every extra year of monopoly rights should incur cost on an ascending scale. Patent rights are inherently restraints on free trade. They should remain on the Register only as long as their owner

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finds it worthwhile to pay an ever-rising price for those exclusive rights.

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Sad, isn’t it. Politicians are under the sway of the lobbyists, who even draft the legislation for them. Meanwhile, in the media, “reputable” newspapers find it cheaper to publish corporate press releases rather than carry the costs of publishing decent quality independent investigative journalism.

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Concerned observer

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DECEMBER 11, 2021 AT 4:53 PM

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Max, there is an old adage that each generation gets the politicians that it deserves.

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I have no doubt that efficient lobbying and the gradual infiltration (and corruption) of various levels of governance has played a strong part in getting the UPC to where it currently stands. However, how many members of the patent profession have effectively been asleep at the wheel whilst all of this has been going on? There is perhaps an element of wishful thinking, ie an assumption that an unrealistic number of firms (and/or clients of those

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firms) will benefit from the new system. There has probably also been a large serving of believing the hype. But none of this provides an excuse for the fact that only a vanishingly small proportion of attorneys have recognised and called out the hideous flaws in the proposed system. (Sadly, much the same could be said about the profession’s general lack of reaction to the numerous and egregious breaches of the rule of law at the EPO.)

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I shudder to think how things might look in 10 years from now.

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D.X. Thomas

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DECEMBER 13, 2021 AT 6:54 PM

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I can only support what has been said by other commenter.

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The whole UPC is a disgrace and the lobby from the big industry and of the internationally active lawyer firms helped with some judges wanting to earn more than in their country of origin, have succeeded to throw sand in the eyes of the politicians. This group of which all members were co-opted have prepared a set of rules of procedure which did not have any control by any parliament. Here is also a big scandal.

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The SME have been nothing else than a fig leaf to make the whole thing more gullible. When one sees how the second German ratification has been obtained, it is a scandal.

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When one sees how the quality of the patents granted by the EPO has deteriorated over the years, one wonders how patents allegedly infringed will survive.

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One just has to see that in opposition, only one 1/3 of the patents survive without amendment, that is in 2/3 of the cases the patent is revoked or limited, and taking into account that only about 5% are opposed, a simple extrapolation shows that there must be quite a number of patents granted by the EPO which are not worth the paper they are (virtually) printed on. One just has a look at the decisions of the BA published regularly to come to this

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conclusion.

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Those patents belong to 2/3 to non-EU/UPC patent holders! The amount of money which be wasted over the years, but to the benefit of the lawyers who push for the UPC is astronomical. That all this should be to the benefit of European industry in general and to SMEs in particular is simply farcical.

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From the beginning the strategy of the UPC’s supporters was to bring the UPC to life and then to make the courts nervous about bringing down an entire system upon which so much time, effort and energy has already been expended. Brexit was a first blow, and the persistence with which those people want to fill their pockets is amazing, as the direct consequences of Brexit are simply ignored.

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The UPC is as useful as a plaster on a wooden leg! That it is cheaper than a EP is not correct. That the translation problem is solved is a lie. That the costs can only be footed by firms with big financial surface is another scandal, the more so since the fees are clearly in favour of proprietors.

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But the complacency of politicians is flabbergasting.

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Salary Adjustment Procedure: Test appeals

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With our previous publication we informed you about the open letter we sent to the President. Aiming to avoid flooding the administration with mass legal actions, we suggested the possibility to use test appellants.

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Earlier this week, we received an affirmative reply from the President, in which the President confirmed that the Office would be willing to apply the final outcome of the legal proceedings to all staff in the same situation in fact and law. SUEPO will now be finding a team of active staff members & pensioners that will act as test appellants for the different circumstances we can identify – and supporting this group throughout the legal

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proceedings. The first step for them will be filing the Request for Review by 30 September 2020.

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If you want to be part of the group of test appellants, then please do let us know urgently – munich@suepo.org

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We will keep you posted on the proceedings.

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SUEPO Munich

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https://twitter.com/squirrelpalooza/status/1470719479072002051

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-TechBytesBot/#techbytes-@squirrelpalooza: @schestowitz "Progressive lawmakers" work less than 6 months out of the year, workers should have their work schedu… https://t.co/iCNpHj6Abf

-TechBytesBot/#techbytes-@squirrelpalooza: @schestowitz "Progressive lawmakers" work less than 6 months out of the year, workers should have their work schedu… https://t.co/iCNpHj6Abf

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""Progressive lawmakers" work less than 6 months out of the year, workers should have their work schedule and gold plated health care like them."

https://twitter.com/AlfsWonders/status/1470705932816596995

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-TechBytesBot/#techbytes-@AlfsWonders: @schestowitz Shame we will not see him at #2022WC

https://twitter.com/zoobab/status/1470701920520228867

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-TechBytesBot/#techbytes-@zoobab: @schestowitz https://t.co/qADxcuGgGj to the rescue?

-TechBytesBot/#techbytes--> archive.org | Internet Archive: Digital Library of Free & Borrowable Books, Movies, Music & Wayback Machine

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-TechBytesBot/#techbytes- ( status 429 @ https://nitter.eu/kzkggaara/status/1470618767306764297 )

-TechBytesBot/#techbytes-schestowitz.com | Social Control Media Posts

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guerras y beneficio de pocos @_whitneywebb @schestowitz" | nitter

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-TechBytesBot/#techbytes- ( status 429 @ https://nitter.eu/dtorbay/status/1470524894882508812"><img )

https://twitter.com/helvetius66/status/1470446720437915652

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Dec 14 13:32

-TechBytesBot/#techbytes-@helvetius66: "It's great. I've trained my human to give me food when I press this button" @derekberes https://t.co/sIB1pkmDxl

Dec 14 13:32

-TechBytesBot/#techbytes-@schestowitz: A "talking" cat is giving scientists insight into how felines think https://t.co/UTamILCaca

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http://patentblog.kluweriplaw.com/2021/12/09/unitary-patent-system-is-an-arbitrary-and-ailing-hybrid-monster-mix/#comments

-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | ‘Unitary Patent system is an arbitrary and ailing hybrid monster mix’ - Kluwer Patent Blog

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Max Drei

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DECEMBER 14, 2021 AT 11:19 AM

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One answer to DXThomas is that the world has changed and “moved on” from the days when the EPO started to do business. Currently, patents are a bulk commodity. The “quality” of each one no longer matters. Instead, what matters is to amass a larger portfolio of patents than each of your competitors controls.

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So, for the bulk owners, ability to withstand validity attacks is not the highest priority. But something that reduces the budget for annuity payments is.

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Litigation is a last resort. What these bulk owners need is outside counsel that can negotiate relations between eye-level competitors, world-wide. Outside counsel needs armies of lawyers, good contacts with government, and expertise in anti-trust law. The irony is that the UPC delivers all that the big portfolio holders wanted, everything on their shopping list, but has been sold to the politicians and the public as a benefit to SME’s in Europe.

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It’s a classic case of pulling the wool over the eyes of lobby-seduced politicians ready and willing to do the bidding of those paying the lobbyists in the naive and mistaken idea that this is, for us here in Europe, progress.

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Gilbert Motagne

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DECEMBER 14, 2021 AT 2:56 PM

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Slovenian parliament did not even discussed it, not even the Brexit implications, it was the government that was bought by the German government.

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Surprisingly, the only party who could be aware of the decision of the German Constitutional Court before it was published was the german ministry of Justice, who then probably planned how to get the PPA into force, and pushed Slovenia and Austria. Strangely enough, it was put on the agenda of the Austrian Parliament 2 days before the decision of the GFCC was published.

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> https://duckduckgo.com/?t=ffab&q=%2Bsite%3Aal+kristina+millona&ia=web

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-TechBytesBot/#techbytes- ( status 403 @ https://html.duckduckgo.com/html/?t=ffab&q=%2Bsite%3Aal+kristina+millona&ia=web )

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> Any allegation of Miss Millona dating any male developer would need a

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> lot of additional scrutiny.

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DDG is like a Microsoft proxy

http://techrights.org/wiki/DuckDuckGo

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-TechBytesBot/#techbytes-techrights.org | DuckDuckGo - Techrights

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Better to use searx