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The UPC Scam Part VII: A Fine Mess in the Making, as Nothing Can be Made of It Amid/After Brexit

The undemocratic patent conspiracy (UPC): We'll just call it something misleading



Summary: The final part in this multi-part series about UPC, which cannot be implemented in the UK as long as Brexit is on the agenda

IN the previous part we made it more apparent that nothing has changed for prospects of UPC in the UK because the Brexit plan has not been called off and nothing except some words on a Web page can suggest otherwise. To put it bluntly, Lucy (Baroness Neville-Rolfe) is either clueless or delusional. She is blindly saying what CIPA, Battistelli/EPO and few other interest groups urged her to say.



We are still seeing the effects of poor (and EPO-bribed) bits of so-called 'journalism' about the UPC. It's more like churnalism or propaganda and a lot of people are not even realising it. Here is Inovia modifying its own headline to make it even more misleading and make it seem like the UPC has just been authorised by the British government. The UK probably CANNOT ratify the UPC; some words on a Web page -- words that contradict everything we know about Brexit -- are nothing but an exercise in stupidity, but UPC hopefuls will latch onto anything.

“Ultimatums are no go...”
      --Benjamin Henrion
As always, for good/better insight into UPC in post-Brexit times see comments from those who are not in Team UPC and actually truly grok this domain. Here is what IP Watch wrote, actually quoting some sceptics for a change:

The United Kingdom government is preparing to ratify the Unified Patent Court Agreement, it said on 28 November. The move took the patent community by surprise but failed to relieve uncertainty about what will happen when the UK finally Brexits the EU, according to patent attorneys in the UK.


A UPC proponent said that "the alternative would have been to say "no" now or until Feb 2017."

Or even "never", although that would come across as undiplomatic. "The alternative would be to say wait until we leave the EU," Tufty the Cat wrote and he is right. IAM previously said something along these lines as well, before it drank some new Kool-Aid.

"Ultimatums are no go," Benjamin Henrion said, alluding to supposed deadlines imposed by the EPO.

"My guess," Tufty the Cat wrote, "is it's simply a way of buying time because @TheCIPA is afraid of the UK being left out."

To Hell with CIPA. It is just a front/lobbying group of the rich law firms, and it's so manipulative that it should come under regulatory laws (like most/all lobbyists). May, whom I personally met and chatted with for a long period of time, clearly doesn't know what she's doing here, so she probably parrots what CIPA and some patent lawyers told her to say. Not wise. The nuclear industry wants nuclear tensions and maybe war. It's the same for patent lawyers regarding the UPC. May should recognise that CIPA is not a friend but more like a Trojan horse trying to shift policy in favour of a very small group that put money in its pot.

“[It] is it's simply a way of buying time because @TheCIPA is afraid of the UK being left out.”
      --Tufty the Cat
Don't forget the role of Barnier, either (mentioned in the last part). As one person put it, "I think this is a non-UK politician telling us why UK politicians acted. I have several alternative guesses but not this one."

Just see his latest UPC lobbying while doing Brexit work. Look at his statements amid Lucy's and May's bizarre move. Is he now blatantly interfering in foreign affairs?

Michel Barnier made a career (along with Battistelli) promoting this monster, even back in the days when it wasn't yet called "UPC". We wrote a lot about him at the time and here he is writing: "UK will ratify Unified Patent Court Agreement. Clears way to first Unitary patent delivery in 2017. Good for innovating Europe !"

Pardon my French, but BULL-****, Sir. That statement is filled with multiple factual errors, but then again Barnier is a politician. When his mouth/lips move he lies (the same goes for Battistelli, who is also a politician).

Speaking of politicians who lie, see this MIP tweet that reads: "Very good news for European industry & SMEs ... entry into force in first part of 2017" - Commissioner @EBienkowskaEU on #UPC today"

"May should recognise that CIPA is not a friend but more like a Trojan horse trying to shift policy in favour of a very small group that put money in its pot."This is an utter lie again. It's consistent with what Bienkowska has been doing for years (we wrote about it when she protected Battistelli's UPC ambitions and belatedly responded to complaints about Battistelli). She is either totally clueless or a liar. We presume the former and we encourage people to explain to her what the UPC really does. SMEs actually oppose the UPC. She was probably lied to by Team UPC, pretending to speak 'on behalf' of SMEs (because Team UPC lacks morals, it just has a mission].

Bienkowska spoke again like a drone of Team UPC and MIP quoted her as follows: "We are not speculating about the future" - this is about getting #UPC going after 40 years - @EBienkowskaEU at press conference" (she doesn't seem to realise what the UPC is, based on such a statement).

The EPO has existed for this long, but the UPC push/ambitions have not, so this is revisionist history.

Writing in response to IPPro Patents, Henrion said that "the only goal is to get it running, who cares what's next."

Well, exactly.

“...the only goal is to get it running, who cares what's next.”
      --Benjamin Henrion
They want reassurance from May and Lucy before those two even check feasibility.

What an embarrassment to our political system.

Dr. Birgit Clark, a German lawyer working in the UK, wrote: "Saying you are continuing with preparations to ratify says "status quo" maintained but not much more?"

It's nothing but words on some Web page. It is "good for patent trolls," Henrion wrote, but only if it actually happens at the end (not likely at all).

Here come the liars from the EPO. A UPC hopeful from Germany wrote that "Margot Fröhlinger gives a first hand account how the UK's intention to ratify came about #brexit #upc #ipsummit pic.twitter.com/ExdxpcT7NZ" (Margot Fröhlinger is Battistelli's right-hand lobbyist for UPC these days).

Margot Fröhlinger has again been caught in a lie, based on this tweet that says "Fröhlinger: interventions by industry and NGOs brought the #UPC on the political agenda 1/2"

Patent lawyers and multinationals are behind this, not "industry and NGOs" (Henrion even asked "which NGOs?").

“Saying you are continuing with preparations to ratify says "status quo" maintained but not much more?”
      --Dr. Birgit Clark
Margot Fröhlinger -- like the Liars in Chief (Battistelli) -- should be assumed to be lying all the time. Henrion told me that he believes CIPA is what Fröhlinger called "NGO". How comical would that be?

The above about Fröhlinger continued with "This raised awareness for the topic and led to U.K. 🇬🇧signifying intention to ratify #UPC🇪🇺2/2"

In this case, "raised awareness" is a euphemism for aggressive lobbying and threats/moral panic by CIPA and Team UPC. Watch some of the patent microcosm commenting on this in the law firms' Web sites [1, 2]. They're absolutely delirious!

MIP, which contributed a lot to misinformation about the UPC, wrote that "UK ratification of UPCA - next steps: 1 Privileges & Immunities Orders in Parl (& Scot Parl). Both are affirmative. 2 Privy Council approval" (go on then, jump the gun!)

Managing IP's UPC promotion is nothing new and it continues even in the US right now. Earlier today MIP published this report from its own event, "EU Patent Forum USA 2016" (bringing some EPO agenda to the US, just as IAM did with the EPO's support). Here are the portions about the UPC:



The UPC looms

"I don’t make predictions anymore," said Alex Wilson of Powell Gilbert at New York’s forum, as he considered when the UPC and Unitary Patent might come into effect. While the UK’s announcement represented an ascent on the long-running "UPC rollercoaster" there were more dips to come, including the actual ratifications in the UK and Germany, the question of what happens post-Brexit and the appointment of judges.

One of the strategic advantages of the UPC for patentees, said Leonard Werner-Jones of Hoffmann Eitle in New York, is the ability to opt-out existing European patents from the Court’s jurisdiction, and opt them back in (at no cost): "If you play your cards right, you can have the best of both worlds." Andrew Hirsch of the International IP Institute was clear about the lesson from this: "I would opt out all the time because you can always opt-in."

In Palo Alto, Bethan Hopewell of Powell Gilbert and Laura Kehoe of Keltie set out the details of the UPC and Unitary Patent respectively, while Kevin Brown of NVIDIA summarised the priorities for industry, including: cost, predictability and flexibility.

[...]

Troll heaven?

The likely impact of the UPC on the IT and TMT industries has been much debated, particularly in the context of whether it will be a heaven for patent trolls or indeed any entity asserting weak or invalid patents for nuisance purposes. In Palo Alto, Will Cook of Marks & Clerk noted that first movers may be able to shape UPC jurisprudence in these fields: "It may be worth a punt to take a case in this court."

However, as Thomas Prock of Marks & Clerk said, national courts are likely to remain important, given that many patentees in the high-tech sector don’t validate in all countries, and national procedures are well established and predictable, even on issues such as the patentability of software.

In New York, speakers from industry discussed enforcement options. Jonathan Jung of iLuv Creative Technology said decisions "depend on budget and enforcement mechanism": top priorities are UK and Germany, followed by (depending on the products) France and Spain. Ian MacKinnon of Nortek agreed on the importance of budget, saying: "You work out the cost of your filings, and then your accounts department says do it for 15% less!"

Given the growing difficulty of both obtaining and enforcing IT and TMT patents in the US, speakers compared the merits of protection in Europe, noting that it depends on value-for-money, competitors, timing and making predictions about where both law and technology are going (there was some discussion of the Internet of Things). As Maureen Kinsler of Marks & Clerk said: "It’s probably easier to get a software-related patent in the EPO than in the US now."



In part 5 we showed new admissions that trolls would be aided by the UPC and here we have the subject brought up again, this time by British/international law firms. Notice that among the topics mentioned above is "patentability of software." MIP continues to deny that UPC will have an impact on patent scope, conveniently ignoring everything that experts have been saying for years.

MIP is planning yet more of these UPC lobbying events. To quote something that has passed: "The UPC loomsSpeakers at Managing IP’s recent EU Patent Forums in Palo Alto and New York City discussed past, present and future developments for patent owners in Europe, including the UPC and Unitary Patent, FRAND cases, arbitration and the impact of Brexit."

To quote something that is about to happen, after Managing IP's series of promotional UPC events (with EPO embedded in them), consider this new E-mail from James Nurton, Managing IP's lapdog for Battistelli (E-mail sent from address managingip@mail2.euromoneyplc.net):

Fwd: 20+ speakers from European Patent Office, Novartis, Intel and PSA Peugeot Citroen and 60+ delegates confirmed - MIP International Patent Forum 2017

MIP International Patent Forum 2017 March 8 & 9, The Waldorf Hilton Hotel, London

Patent/IP counsel, heads of legal - FREE attendance Private practice save €£300 before Friday, 16 December


Speakers include "Heli Pihlajamaa, director of directorate patents, European Patent Office" and "Principal patent analyst, patent strategy, Microsoft" (lobbyist for software patents).

The Unitary Patent is going nowhere, but as panels are being stacked here we can envision something a whole lot like of "echo chamber" at play. "Patent/IP counsel, heads of legal" enjoy "FREE attendance," which means the event will get stuffed with patent maximalists. This is how Managing IP ensures it's just an echo chamber whenever they speak about software patents, UPC, etc. Typical.

The EPO must be very proud of all this work from MIP. Rather than acknowledge that Brexit causes uncertainty for the UPC, MIP reverses it all and says: "Longer term, though, today's UK announcement on UPC creates uncertainty about what happens post-Brexit & potential renegotiation of UPCA..."

As if Brexit plans will get canned because of some patent lawyers and UPC ambitions. What a ludicrous statement. "Think this is correct," MIP wrote about scepticism from Gavin Lingiah. "Seeking clarification from govt."

MIP wrote, "UK today committed to ratify UPC agreement AND work to bring it in "as soon as possible". If DE does too, it could still start by mid-2017"

Nonsense. EPO propaganda again.

Dr. Luke McDonagh said to MIP it "would be extremely pointless to ratify UPC, put resources into London court then leave anyway on Brexit in 2019 or thereafter." (he responded to MIP's statement that the government's "statement doesn't make any commitment post-Brexit").

“Longer term, though, today's UK announcement on UPC creates uncertainty about what happens post-Brexit & potential renegotiation of UPCA...”
      --Managing IP
McDonagh also wrote "it reveals UK's willingness to accept CJEU jurisdiction - the hard Brexit mask has slipped..."

Or maybe it just reveals that May and Lucy don't know what the heck they are doing. They contradict themselves, as we showed in the previous part.

The person whom McDonagh responded to in the latter case had said that "IP Minister Baroness Neville-Rolfe expected to make statement on UK's position regarding unitary patent and UPC at 5pm (UK time)" (there were already rumours about what would happen).

Watch how MIP distorted the record on this. Team UPC tries to raise the exit barrier by greasing up Lucy and turning the EU into a patent warzone. MIP helped them with tweets like this one : "Initial reaction to today's #UPC news on Twitter seems overwhelmingly positive, especially from other EU countries" (not really, see the previous part of this series).

“...would be extremely pointless to ratify UPC, put resources into London court then leave anyway on Brexit in 2019 or thereafter.”
      --Dr. Luke McDonagh
When you live in an echo chamber and all you read are a bunch of patent law firms that you are subscribed to in Twitter, then inane statements like the above come out. "Been looking at all tweets with #upc," MIP wrote. "Interested in all (informed) views!" But don't they know that Twitter prioritises tweets from those whom they follow? Or that not everyone uses the same hashtag? Maybe they also subscribe to IAM, reading the magazine's latest Kool-Aid from Sofia Willquist, Alan Johnson, Julia Mannesson, Gottfried Schüll, Christoph Walke and Dominic Adair. To quote the opening part alone (there is a paywall): "The decision by UK voters to leave the European Union has thrown plans for the Unified Patent Court into chaos. Specialists from three top European law firms discuss what is likely to happen now, as well as other key issues" (they evidently wrote this before Lucy wrote a statement, which technically changed nothing at all).

Writing about Lucy, one EPO insider told us "Baroness (Lucy) Neville Rolfe on her knees before #Battistelli, President of the #EPO, the #UK minister with responsibility for IP..."

Maybe Battistelli can throw some "Cooperation Money" at her, as he so often does. It's his convenient way (method of choice) to pass a gift in exchange for a favour. Remember that Battistelli's legal firm that threatened me (in an effort to silence me) is itself part of Team UPC. This whole system rots when one realises just how well-connected all these things are. Patent lawyers set up bogus debates and lie to everyone using their media while even advertising bogus job openings (never mind setting up of courts prematurely) to cement this illusion of inevitability. Well, never underestimate the ability of Team UPC, the EPO and Battistelli to shamelessly break the law and get away with it. Nothing is as advertised and there is a lot of bullying, especially towards those who dare challenge the lies.

As one person explained it to MIP last week, "as rights holder would not engage with UPC without certainty of CJEU decision as to whether non-EU state can be UPC CS" (also see the aforementioned comment about CJEU).

“CJEU can decide on many more topics colliding with patent law.”
      --Benjamin Henrion
"Patent law does not work in isolation," Benjamin Henrion wrote. "CJEU can decide on many more topics colliding with patent law."

Businesses in the UK, if or when the time is right, should be able pool resources to take on Team UPC, maybe even taking these firms and their buddies to court over it. No doubt UPC opponents, i.e. just about everyone except the patent microcosm, will organise to antagonise any British attempts to override democracy, but for the time being it doesn't look as though ratifying the UPC in the UK is even possible. It's all just talk. The UPC has all along been 'marketed' using a big bundle of lies. Politicians who are foolish or corrupt (maybe both) repeated these lies, but the repetition itself does not make the lies true. The so-called 'Unitary Patent' is nothing but a conspiracy and some texts weaved together by those who are already rich in order to guard or expand their wealth. TPP was constructed in the same way and it didn't take it long to collapse, as soon as the public found out about it and started fighting.

"Let's scalp the UPC in Court now," Henrion wrote. "We still have some Constitutional Courts to go and the ECHR in Strasbourg in the last resort..."

"Brexit is simply not compatible with the UPC."Well, the UPC is still far from a reality and we need to keep it that way. The UPC would be a slap on the face of 99.9% of Europe's population and if we set up a petition against it, we expect outpouring of support. For the time being, however, it doesn't seem like we're in danger of UPC verging a reality.

Someone called Ian Tweed, a patent attorney from London, sent me a "serious question" and asked "what's your main issue with the UPC? Most SME clients I've talked to see positives and it's not obligatory ... The UPC doesn't change substantive patent law. It simplifies pan-EU enforcement and makes it easier to knock out "bad" patents" ... I am a patent attorney. But I'm not blind to criticism of patents. I'm interested to know why you consider that the UPC is bad..."

Tweed deleted his three tweets before I had a change to respond to them, but either way, I don't know what SMEs he spoke to and what they have been told about the UPC. It seems like they were seriously misinformed as a lot of the above is untrue or inaccurate.

"Techrights is probably one of the very few sites pursuing the truth about the UPC and we intend to continue to do so."To sum it all up, CIPA and others have been greasing up Lucy Neville-Rolfe with assertive letters, lies, lobbying events etc. This may have paid off for Team UPC in the short term, but it's not actually changing the technicalities. Brexit is simply not compatible with the UPC. How many Brits (or Europeans in general) know that UPC is intended to help lawyers and large clients systematically rob them all? A lot of these so-called 'news' sites that celebrated the UPC last week were actually not news sites but Web sites of UPC conspirators that also set up lobbying events. Some news sites were also bribed by the EPO, so no wonder they sent out (or 'beamed') false information for other sites to faithfully parrot.

Techrights is probably one of the very few sites pursuing the truth about the UPC and we intend to continue to do so.

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