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schestowitz=Dec 21 06:08
schestowitzx 21 06:08
-TechBytesBot/ | Bill Gates Invests in Hydrogen-Powered Airplane StartupDec 21 06:08
schestowitzx 21 06:09
-TechBytesBot/ | Julian Assange Should Not Be Pardoned | The Heritage FoundationDec 21 06:09
schestowitzx 21 06:11
-TechBytesBot/ | Lockdown blamed as more under-18s held for terror offences in UK | UK security and counter-terrorism | The GuardianDec 21 06:11
schestowitz> We are lucky enough to have virtual school and my kids have not been forcedDec 21 09:56
schestowitz> back to classrooms.   My oldest daughter is taking a gap year and looking forDec 21 09:56
schestowitz> scholarships that might allow us to afford some of the prestigiousDec 21 09:56
schestowitz> universities she was admitted to with generous but inadequate scholarships.Dec 21 09:56
schestowitz> The one she wanted to go to, but we still can't afford, is the xxxxxxxxxxDec 21 09:56
schestowitz> School of Design.  It would have cost her about $100,000 in student loans,Dec 21 09:56
schestowitz> after scholarships that cover most of the costs.  Right now,xxxxxx isDec 21 09:56
schestowitz> one of the most dangerous places to be in the US covid pandemic.  She hasDec 21 09:56
schestowitz> offers of a free ride at xxxx, with minor expenses that I could handle myselfDec 21 09:56
schestowitz> without debt, but xxxxxx schools have been very Trumpian stupid about thingsDec 21 09:56
schestowitz> and xxxxxxx in general has followed Trump's directives that intentionallyDec 21 09:56
schestowitz> spread covid19.Dec 21 09:56
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Techrights-sec2<< did i miss st you said todayDec 21 13:54
Techrights-sec2Ok.  It looks like everything is set.Dec 21 13:54
Techrights-sec2Squeezed in some router work too so that took a little longer.Dec 21 13:54
Techrights-sec2Now there ar ea lot fewer wires and those that remain are soldered muchDec 21 13:54
Techrights-sec2more cleanly.Dec 21 13:54
Techrights-sec2I think nothing was missed.  I started the backup but it finished during the outage.Dec 21 13:54
Techrights-sec2I have not tested the backups though.Dec 21 13:54
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schestowitz> I've done a backup of some TR files.  I have not tested the backup byDec 21 19:03
schestowitz> running a simulation though, just grabbed the tarballs and the webDec 21 19:03
schestowitz> documents.Dec 21 19:03
schestowitzAs is usual, nothing got done today on the migration of the site. Some people wait until the deadline is imminent before they bother. Given my condition today, I am actually relieved not to have this extra stress today.Dec 21 19:03
schestowitz 21 19:34
-TechBytesBot/ | German Bundesrat approves ratification of Unified Patent Court Agreement - Kluwer Patent BlogDec 21 19:34
schestowitz"Dec 21 19:34
schestowitzDecember 18, 2020 at 9:33 pmDec 21 19:34
schestowitzI am always astonished afresh how powerful the UPC lobby is. They can push governments and parliaments wherever they want. And all of this just to fill a few pockets. Amazing. Poor old Europe, your SMEs are going to bleed ….Dec 21 19:34
schestowitzReplyDec 21 19:34
schestowitzArticle 24 Vienna Convention, anyone?Dec 21 19:34
schestowitzDecember 19, 2020 at 8:50 pmDec 21 19:35
schestowitzOf “If no complaints are filed, two more countries will have to ratify (or otherwise consent to) the PPA for the provisional application phase to come into force”, what does the Vienna Convention on Treaties say?Dec 21 19:35
schestowitzVienna Convention on Treaties, Article 24, Entry into force says:Dec 21 19:35
schestowitz24.1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.Dec 21 19:35
schestowitz• But, the requirement for UK ratification, that the UPC Agreement provides, has not been satisfied.Dec 21 19:35
schestowitz24.2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.Dec 21 19:35
schestowitz• But, all the negotiating states, which include the UK, have not given such consent.Dec 21 19:35
schestowitz• Could the UPC Agreement be amended to allow entry into force without UK ratification? Article 39 allows amendment?Dec 21 19:35
schestowitzArticle 39: A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide.Dec 21 19:35
schestowitz• It requires agreement between the parties. That includes the UK.Dec 21 19:35
schestowitz• Is there such an agreement?Dec 21 19:35
schestowitzReplyDec 21 19:35
schestowitz    LightBlueDec 21 19:35
schestowitz    December 20, 2020 at 12:55 pmDec 21 19:35
schestowitz    Does the withdrawal of a ratification have the effect of creating a legal fiction that the ratification never happened?Dec 21 19:35
schestowitz    ReplyDec 21 19:35
schestowitz        Concerned observerDec 21 19:35
schestowitz        December 21, 2020 at 12:05 pmDec 21 19:35
schestowitz        Perhaps your question can be answered by considering the hypothetical situation in which ALL other Contracting States to the PPI withdraw their instruments of ratification / consent to be bound by the Protocol. Such a situation would then pose a related question, namely: can an international treaty enter into force if NONE of the Contracting States to that treaty are willing to be bound by its provisions?Dec 21 19:35
schestowitz        It should be clear from this alternative scenario that it is the CURRENT (and not the historical) status of the ratification of a contracting party to an international treaty that has legal significance.Dec 21 19:35
schestowitz        Of course, if you think that a different meaning emerges from application of the methods of interpretation permitted under the VCLT to Article 18 PPI, then I would be interested to hear your explanation of how one could reasonably arrive at such a different meaning.Dec 21 19:35
schestowitz        ReplyDec 21 19:35
schestowitzAttentive ObserverDec 21 19:35
schestowitzDecember 20, 2020 at 10:22 amDec 21 19:35
schestowitzThe UPC lobbyists might have won a battle, but certainly not the war.Dec 21 19:35
schestowitzWhy do you not believe, the UPC is not good for European SMEs? You are not receptive to lobbyism, that’s your problem.Dec 21 19:35
schestowitzIn the accompanying note to the new ratification bill, the German Ministry of Justice went as far as to claim that it will be cheaper for a SME to go before the UPC than before a national court in case of patent litigation. Hard to believe, but true. How can civil servants in charge of the administration of justice can write such a non-sense? At least it is clear who held the hand of those civil servants.Dec 21 19:35
schestowitzThe writers did not even realise how ridiculous this stance is. Why does Germany need an international, rather expensive, court in order to give SMEs cheaper access to justice in cases of patent litigation? I fail to understand, but I am also not receptive to lobbyism. It also shows that the MPs have ratified with both eyes shut.Dec 21 19:35
schestowitzAs far as the VCLT is concerned, not only Art 24 VCLT could apply. It is also necessary to look at Art 31 and 32 VCLT.Dec 21 19:35
schestowitzAs far as Art 24VCLT is concerned, UK has only send in a “verbal note” explaining that it will not participate to the UP/UPC system. I am not a specialist of international public law, but I do not equate “not participating” with a proper withdrawal of the ratification.Dec 21 19:35
schestowitzAs 31 and 32 VCLT goes about interpretation of a treaty. Art 31VCLT was mentioned in the explanatory note for the new ratification bill.Dec 21 19:35
schestowitzArt 31(1) states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.Dec 21 19:35
schestowitzWhen interpreted in good faith Art 7(2) UPCA makes it clear that a section of the Central (?) Division will be located in London. There is no need to interpret this text, it is crystal clear.Dec 21 19:35
schestowitzAccording to Art 31(2,a) the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty.Dec 21 19:35
schestowitzArt 31(3,a) adds that “There shall be taken into account, together with the context any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”.Dec 21 19:35
schestowitzWhere is the agreement of the parties to the UPC accepting, at least provisionally, that the duties devolved to the London Section will be distributed between Paris and Munich?Dec 21 19:35
schestowitzWhere is the agreement that it can be decided under Art 87(2) that the location of the London Section can be decided when the UPCA will be revised by its Administrative Committee?Dec 21 19:35
schestowitzIt is also difficult to see how the transfer of the London Section is to bring the UPCA into line with an international treaty relating to patents or Union law. Art 87(2) only applies after all contracting states have individually ratified international treaties relating to patents or amendments to those.Dec 21 19:35
schestowitzAdaptation of the UPCA to those new treaties, or their amendment, does not need a separate new ratification of the UPCA. Art 87(2) does not allow a different interpretation under the VCLT. One example: some amendments of the EPC which could have an influence on the UPCA could be incorporated into the latter after ratification by all the contracting states of the amended EPC. No need to have a new ratification of the UPCA. No less, butDec 21 19:35
schestowitzno more.Dec 21 19:35
schestowitzArt 32 VCLT specifies that “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when the interpretation according to Art 31:Dec 21 19:36
schestowitz(a) leaves the meaning ambiguous or obscure; orDec 21 19:36
schestowitz(b) leads to a result which is manifestly absurd or unreasonable.Dec 21 19:36
schestowitzThe text of Art 7(2) UPCA is anything but ambiguous or obscure and does not lead to a result which is manifestly absurd or unreasonable.Dec 21 19:36
schestowitzTo me it is rather the interpretation of the UPC lobbyists who held the hand of civil servants in the German Ministry of Justice which is manifestly absurd or unreasonable.Dec 21 19:36
schestowitzOne well known French lawyer and staunch UPC lobbyist went as far to claim that Brexit was a gift which allowed to shift the duties of the London Section to Paris. German lawyers and UPC lobbyist did not agree and in the explanation note Munich appeared next to Paris…..Dec 21 19:36
schestowitzRather than to complain about software patents, a new complaint to the German Federal Constitutional Court could be along the line that the entry into force of the UPCA under the interpretation of the German Ministry of Justice could lead to a denial of justice. By merely transferring the duties of the London Section to Paris or Munich would deprive a German citizen to its right to have its case decided by the “appropriate” judge.Dec 21 19:36
schestowitzThe notion of the “appropriate” judge is very important in the recent legal German tradition.Dec 21 19:36
schestowitzTo sum it up, which user of the European patent system will want to put even a portion of one of its European Patent to such a wobbly and uncertain system? Patents are for business and not to fill the pockets of lawyers. But should you put one question to two lawyers and you will get three opinions! That is not what we need for the European patent system!Dec 21 19:36
schestowitzReplyDec 21 19:36
schestowitzExtraneous AttorneyDec 21 19:36
schestowitzDecember 20, 2020 at 9:22 pmDec 21 19:36
schestowitzWell taken, “Article 24 Vienna Convention, anyone?”.Dec 21 19:36
schestowitzTo all this one could also add that Article 18(1) of the Protocol on Privileges and Immunities of the UPC reads (emphasis mine):Dec 21 19:36
schestowitz“This Protocol shall enter into force 30 days after the date on which the last of the four State Parties – France, Germany, Luxemburg and THE UNITED KINGDOM – has deposited its instrument of ratification, acceptance approval or accession.”Dec 21 19:36
schestowitzUnless I am mistaken, this condition will not and cannot be fulfilled due to the withdrawal of the UK. How, then, can the Protocol enter into force? Or is it contemplated that the UPC will not be afforded the protections foreseen in the Protocol?…Dec 21 19:36
schestowitzReplyDec 21 19:36
schestowitzPatent robotDec 21 19:36
schestowitzDecember 21, 2020 at 9:14 amDec 21 19:36
schestowitzI think that Article 56 VCLT applies to UK as well.Dec 21 19:36
schestowitzI am also curious to see how Art. 3.1 PPA applies without the UK.Dec 21 19:36
schestowitzReplyDec 21 19:36
schestowitzArticle 24 Vienna Convention, anyone?Dec 21 19:36
schestowitzDecember 21, 2020 at 6:11 pmDec 21 19:36
schestowitzAgreed about 7(2), but is it perhaps susceptible to a fudge once the court is up and running?Dec 21 19:36
schestowitzThe UK ratification withdrawal looks pretty unequivocal. the UPC committee thinks so and it was certainly the intent of the UK government: 21 19:36
-TechBytesBot/ | UK Withdrawal from the UPCA | Unified Patent CourtDec 21 19:36
schestowitzThe Vienna treaty envisages disruption due to changed geopolitical circumstances with time, as you might expect (see Article 18(b) as regards what can happen during an “undue delay”). Brexit is a changed geo-political circumstance par excellence and there has certainly been an undue delay in the implementation of the UPC. So it would be realistic to expect that ratifications can come and go.Dec 21 19:36
schestowitzNot much interpretation of these articles is needed for pursuit of the UPC at this stage to look a bit murky – for the sake of renegotiating the location of the life sciences branch and the removal of the UK, is it worth having credible doubts linger about the legitimacy of the court under international treaty.Dec 21 19:36
schestowitzReplyDec 21 19:36
schestowitzAttentive ObserverDec 21 19:36
schestowitzDecember 21, 2020 at 7:39 pmDec 21 19:36
schestowitzAccording to the General Secretariat of the Council of the European Union (the “depository”), the UK has withdrawn its ratification and the withdrawal has become effective on 20.07.2020.Dec 21 19:36
schestowitzFor the UPCA to enter into force, cf. Art 89(1) UPCA ,13 ratifications are required and among those the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place. As far as the ratification of the UPCA is concerned, Italy could easily replace the UK.Dec 21 19:36
schestowitzHowever the UK is still named expressis verbis not only in Art 3.1 PPA but also in Art 18 PPI as being required to ratify the UPCA. As far as the PPA and the PPI are concerned, UK cannot be replaced by Italy as it is possible for the UPCA. This could be possible under the VCLT if all contracting states would make a common declaration replacing the UK by Italy in both the PPA and the PPI.Dec 21 19:36
schestowitzHowever, not only Italy but also The Netherlands and Ireland have uttered claims to the duties of London Section, so that a common declaration and also a corresponding agreement on the “provisional” transfer of the duties of the London Section to Paris or Munich are no more than wishful thinking on the side of UPC lobbyists in France and Germany.Dec 21 19:36
schestowitzFrom whichever side one looks at the question, the problem of Art 7(2) UPCA remains and should have been resolved before any German ratification. But the UPC lobbyists pushed hard enough to get the German Parliament to ratify. .Dec 21 19:36
schestowitzIn other words, the mess is quite perfect. Should Germany indeed deposit its instrument of ratification a start of the UPC at the end of 2021 or at the beginning of 2022 is still no more of than wishful thinking.Dec 21 19:36
schestowitzI am looking to get some compelling arguments why it actually could be so. By compelling I mean something more serious than wishful thinking as it is presently the case be it from the lobbyists or the Preparatory Committee of the UPC.Dec 21 19:36
schestowitzLast but not least, even if the UPCA should enter into force as foreseen its compatibility with Union Law is still not certain. It is claimed to be, but it is a claim which as compelling as to the present wishful thinking of UPC lobbyists. Why the compatibility of the UPCA with Union Law has never been tested? The whole UP/UPCA might blow up for this reason alone. And I am not even thinking of the role of the Boards of Appeal of the EPODec 21 19:36
schestowitzis revoking or limiting an asset valid in the EU or parts of it.Dec 21 19:36
schestowitzIt does not appear enough to allow prejudicial questions to the CJEU for it to be so. Prejudicial questions can only be put to the CJEU if they come from a jurisdiction which is considered as being part of the legal system of EU contracting states. Some doubts are allowed as far as the UPCA is concerned.Dec 21 19:37
schestowitz"Dec 21 19:37
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