IRC: #techbytes @ Techrights IRC Network: Thursday, May 19, 2022

schestowitz

> Sorry mistake on this site of the inet

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> Its the new android mail app pEp

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> That tries to encrypt.

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> But this response aint encrypted right?

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Anything on Android is untrustworthy when it comes to privacy and security.

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See "Vault7" and "Vault8" (Wikileaks).

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> can not decrypt ur mails, because key 0x1ED98B4795BBC3F4

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> is outdated.

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Try now.

http://patentblog.kluweriplaw.com/2022/05/12/upc-decisions-will-be-more-consistent-and-extremely-fast/#comments

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-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | ‘UPC decisions will be more consistent and extremely fast’ - Kluwer Patent Blog

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Patent robot

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MAY 12, 2022 AT 10:47 AM

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There is no legal reason at all to provisionally move the London section to Paris/Munich, instead of Milan.

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In fact, Milan is the natural location according to the “authentic” interpretation of art. 89 UPC: if Italy replaces UK then Milan replaces London.

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Andre Frans

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MAY 12, 2022 AT 4:10 PM

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London is in France:

https://en.wikipedia.org/wiki/London,_France

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-TechBytesBot/#techbytes-en.wikipedia.org | London, France - Wikipedia

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Patent robot

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MAY 13, 2022 AT 9:28 AM

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Actually, moving the London section to French London seems to be quite legal, which is not the case for Paris/Munich.

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By the way, according to which EU law, a EU body (which the UPC is not) cannot have a branch outside the EU?

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Extraneous Attorney

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MAY 13, 2022 AT 1:27 PM

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“Actually, moving the London section to French London seems to be quite legal, which is not the case for Paris/Munich.”

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Except for the little matter of Article 88(1) UPCA, according to which the English, French and German language versions of the Agreement are equally authentic. The French version of Article 7(2) UPCA uses the word “Londres”, which in French unambiguously means the city in England.

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“In fact, Milan is the natural location according to the “authentic” interpretation of art. 89 UPC: if Italy replaces UK then Milan replaces London.”

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As I already said before, why not Livorno, Lecce, La Spezia, or Lucca? These cities have a name which starts with an “L”, whereas Milan does not.

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Of course, as always, I am being tongue-in-cheek, if not downright cynical. All of this has no basis whatsoever in the only thing that should matter under the rule of law, i.e. the text of the Agreement.

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Patent robot

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MAY 13, 2022 AT 7:16 PM

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As I already mentioned, Milan is the city chosen by the third Art 89 State, like Munich and Paris are the cities chosen by the first and second Art. 89 States, respectively.

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I do not believe that “United Kingdom” can become “Italy” in the PAP, but if this is possible then “London” (a city chosen by the United Kingdom) must become “Milan” (a city chosen by Italy) in the UPCA.

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Let’s not forget that Art. 89 means that the UPC cannot start without the approval of the three most important EU states.

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Anon Y. Mouse

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MAY 12, 2022 AT 11:01 PM

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I can follow, in principle, the logic that Italy replaces the UK, but why would the choice of Milan be automatic (rather than, e.g., Rome or Naples or Florence…)?

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I don’t disagree that Milan would be a sensible choice and that it has good arguments in its favour. I just don’t see how Milan naturally (one might say “directly and unambiguously”) flows from the text of the UPCA, even if one accepts that Italy does.

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Patent robot

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MAY 13, 2022 AT 1:25 PM

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Milan is the city chosen by the third Art 89 State, like Munich and Paris are the cities chosen by the first and second Art. 89 States, respectively.

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Simona Fonzi

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MAY 12, 2022 AT 10:57 AM

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Can you use the Italian language as a defendant, including in appeal?

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DXThomas

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MAY 13, 2022 AT 12:25 PM

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Dear Elisabetta,

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I do not often disagree with you, but here there are two points I have to query.

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First is the provisional allocation of the duties previously thought for London to Paris and Munich. I am of the opinion that there is no legal basis for such a move.

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Whilst I can agree the replacement of UK by IT in the PAP. But it needs a common declaration under Art 31/32 VCLT. Such a declaration was announced but never signed.

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As far as Art 7(2) UPCA is concerned the story is different. In view of its clear wording, Art 31/32 VCLT do not apply. You can turn those articles how you want, they do not give this interpretation! And certainly Art 87(3) do not give this at all. Even a common declaration would not do.

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The second point is consistency of case law. Whilst I can agree on infringement, I cannot agree on validity. It is expected that there will be diverging case law. Just think of added matter. There is not even a way to exchange information between the two jurisdictions. This is the case between the EFTA court and the CJEU.

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As a UP is granted by the EPO, validity becomes a question if a UP is opposed.

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The first instance and the BA at the EPO are bound by decisions of the EBA. I do not wish a string of “dynamic interpretations” in the style of G 3/19 in order to align one court to the other. Why should the UPC prevail? There is no reason!

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This is the more so as the number of oppositions might not diminish, be it only for a problem of fee and the possibility for the EPO to provide free interpretation. At the UPC, costs for simultaneous are to be borne by the losing party!

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I will not say anything much about SMEs, but the impact of the UPC on SMEs has not be assessed and they are facing big surprises with the UPC. Even if they do not export, they might be infringers under the UPC whilst they were not with a bundle patent not designating their country of residence.

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Patent robot

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MAY 13, 2022 AT 4:06 PM

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Also in the PAP there is a “clear wording” which cannot be interpreted, not even with a common declaration.

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Why do you think that “United Kingdom” can become Italy in the PAP and “London” cannot become e.g. Milan (or any other city, if so agreed) in the UPCA?

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Is a protocol more flexible than an agreement?

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DXThomas

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MAY 13, 2022 AT 7:05 PM

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For the simple reason that in Art 3 of the PAP there is no country mentioned as such. It only mention countries which at a given date would have the most valid patents. This implied at the time DE, UK and FR. In this respect it could be accepted to replace UK by IT.

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The situation in Art 7(2) UPCA is quite different, as at the time the three countries UK, DE and FR were mentioned expressis verbis with London, Munich and Paris. On top of it Annex 2 defines clearly the technical areas according to the IPC to be deat with in each location.

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The only clean way to take into account the withdrawal of the UK would have been to reopen the negotiations on Art 7(2) UPCA. The proponents of the UPC new very well that if Art 7(2) would have been renegotiated and re-ratified, the chances for the UPCA to enter into force would have been drastically reduced as it would have taken a few years.

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That is why they came to the idea to fiddle around with Art 7(2) UPCA and propose the provisional allocation of the duties allocated to London to Paris and Munich. The final allocation would be done at the first revision of the UPCA under Art 87(3) UPCA.

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It is a nice construction, but does not even have the beginning of a legal basis.

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Patent robot

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MAY 14, 2022 AT 11:29 AM

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Dear Daniel,

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You say: “For the simple reason that in Art 3 of the PAP there is no country mentioned as such.”

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Well…I do not think so:

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“Article 3 – Entry into force

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(1) This Protocol shall enter into force the day after 13 Signatory States of the Agreement on a Unified Patent Court including Germany, France and the United Kingdom, have either ratified…”

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Thus, the same reasoning (which I find correct) you apply to Art 7(2) UPCA, must apply also to Art. 3(1) PAP and Art. 18(1) PPI, since they all mention expressis verbis the UK.

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As a consequence, the PAP and the PPI cannot be in force now.

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DXThomas

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MAY 14, 2022 AT 2:04 PM

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Dear Patent robot,

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Sorry,

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It is in Art 83(2) UPCA which does not mention a country.

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My apologies.

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But I could understand the wish for changing UK to IT.

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I do however agree that without a corresponding declaration the PAP has not legally entered into force. It was a fait accompli by the secretariat by a lobby which is easy to guess.

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But when looking at Art 7(2) UPCA I fail to see any possibility to conclude that the duties allocated to London should be “provisionally” transferred to Paris and Munich.

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It is amazing to see judges, that is learned legal specialist to show interest into a court which has no legal basis whatsoever!

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I wonder why?

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Attentive Observer

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MAY 13, 2022 AT 6:02 PM

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Dear Simona Fonzi,

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As a UP held by an Italian proprietor will have been delivered in one of the official languages of the EPO, the procedure before the UPC will be in one of those languages before the central division.

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It might at best be in Italian during OP before an Italian local division.

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But should simultaneous interpretation costs accrue, they will be borne by the losing party.

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When you look at the whole language regulation at the UPC, it is a nightmare!

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Those who claim that the UPC will solve the language problem do not know what they are talking about!

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Patent robot

schestowitz

MAY 14, 2022 AT 2:05 PM

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By the way, according to which EU law, a EU body (which the UPC is not) cannot have a branch outside the EU?

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DXThomas

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MAY 14, 2022 AT 10:24 PM

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It is a question of liability of the contracting states. See Art 20 UPCA.

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Patent robot

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MAY 15, 2022 AT 10:11 AM

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Dear Daniel,

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Thank you for your answer: I guess that you referred to Art. 22 UPCA, which however does not enter into the details of the liability of the single divisions, which are governed in greater detail by the PPI (which cannot enter into force because of the UK withdrawal).

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However, both the EU and the CMS have a delegation or embassies, respectively, in London.

https://en.wikipedia.org/wiki/Delegation_of_the_European_Union_to_the_United_Kingdom

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-TechBytesBot/#techbytes-en.wikipedia.org | Delegation of the European Union to the United Kingdom - Wikipedia

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So what if, in theory, the London section of the UPC was established at the EU delegation, at the German embassy or at another building having the same diplomatic priviliges and immunities?

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This would be a UPC section based in London but under Union law, wouldn’t it be?

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Of course, the PPI should be amended to deal with this specific situation but the PPI has to be amended anyway because of art. 18(1) PPI.

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DXThomas

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MAY 15, 2022 AT 4:22 PM

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I can follow your argument, but rather than fiddling with the PPI and coming up with a construction which is on very shaky grounds, it might have been better and certainly more intelligent to amend and re-ratify Art 7(2) UPCA.

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The Brexit goes back 6 years ago and the withdrawal was acted 4 years ago. There would have been ample time.

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But the prospect of further filling already deep pockets, let the proponents of the UPC to give up any rule of law.

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Mme UPC has said that where there is a will there is a way.

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There was manifestly no will for a correct and legally sound solution! All the UPC proponents did not want to go this way.

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They neither wanted the UPC to be checked by the CJEU. Allegedly because nobody thought of it.

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Please do not pull my leg or add insult to injury.

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I am therefore still of the opinion that the UPC is not a court within the legal system of Union law.

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It is also not a court according to Art 6(1) ECHR, as it is presently envisaged.

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The hope has not died on the side of the proponents that no jurisdiction, be it at EU or at national level will dare blowing up the system once it has started.

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I would not be so sure about it!

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On the other hand what is there to be held from judges who apply for a position at such a court? I leave the answer open!

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