Not legal advice but shameless self-promotion by misinformation

Summary: IP Kat is again being used for lobbying purposes, courtesy of those striving to undermine British democracy by misinforming officials, lying about British companies, and constantly lying to the public

THE EPO does not have a monopoly (or a patent) on lying. There are several law firms, even right here in the UK, which have taken a leadership in lying and these would have us -- including politicians -- believe that the UPC is both possible and desirable. It is neither. It's only desirable to these law firms (and their largest clients), which we collectively refer to as "Team UPC". It's only possible if our politicians ignore the law, or simply pretend that they can make up the rules as they go along (retroactively legalising illicit moves they have made).

We are not quite so sure what compels people like Annsley Merelle Ward to tarnish their reputation by becoming de facto lobbyists; we're even less certain why IP Kat plays along with it. In the coming days we'll publish quite a few articles about the UPC, debunking misinformation in spite of lack of time (and resources).

A reader of ours recently mentioned a post that was published one decade ago in IP Kat. To quote:

I am paraphrasing a sentence found not far away. It is tempting to blame all this on Battistelli, but that is taking the easy way out. All what Battistelli does is to put a new face on the existing governance problem so now it concerns a vast majority of the staff rather than isolated cases, you remember the French mafia, the Flemish one , the IIBs etc..The real problem behind all this is the bunch of corrupt members at the AC. Beware I am not saying they are all corrupt but many are. If we look at the past there was an explicit publication at IPKAT, remember?:

http://ipkitten.blogspot.com/2007/06/unprofessional-inefficient-overpaid-and.html

See how the EPOrg considers its own staff? "Unprofessional, inefficient, overpaid and malingering" . I am certainly over sensitive but I first felt insulted. Then I gave it a thought. Wait... who bears the responsibility for recruitment? Yes indeed the management. Therefore, with just one sentence the AC members demonstrate their absolute incompetence. They are not even able to recruit professional, efficient and trustworthy staff to a "reasonable" price. What an avowal! The same AC recruited Battistelli....all the adjectives apply without an exception.

The above is attributed to Alain Pompidou, who was embroiled in some other issues and is connected to Christine Lagarde. Putting that point aside, let's look at the latest on UPC from IP Kat. Being a blog, it's not obliged to adhere to widely-accepted journalistic standards (such as balance), but it should at least attempt to verify facts/ascertain accuracy of what gets posted there.

Citing colleagues of hers the other day, Annsley Merelle Ward wrote: "Someone who is a touch more optimistic than the AmeriKat is Alan Johnson (Bristows)."

"Being a blog, it's not obliged to adhere to widely-accepted journalistic standards (such as balance), but it should at least attempt to verify facts/ascertain accuracy of what gets posted there."Put another way, I am here to copy-paste something that my colleague wants publicised, as almost nobody reads our blog anyway and we could use some broader audience. The post from Annsley Merelle Ward was not well received. Every single comment was hostile towards the message. As a recent poll shows, patent professionals disagree with Team UPC and don't share its imposed optimism. Early commenters said: "Just to be clear - are the optimists those who think it [UPC] won't actually happen or those who hope it will happen?"

Another said "it is clear that it can only be those who hope it will happen...."

"The optimists are those members of the ruling clique whose opinions outway [sic] all others," added the next comment.

Why did IP Kat go along with it? They are posting for an employee of a heavily-vested (in the UPC) firm, citing another employee of the same firm, without any disclosure about their motivations (for people who randomly come across it, 'errandly', and may deem this legal advice).

That afternoon when IP Kat published what was arguably fake news (for Bristows) there was also negative feedback in Twitter. IP Kat had done this before, but it has been a while since it last did the UPC pieces from Bristows. The conclusion of it: "So if the UPC opens its doors in December, will it be a triumph of optimism over experience (and politics)? The AmeriKat [Annsley Merelle Ward refers to herself like that, as a third person] is not eager to predict the future."

"It's hardly surprising that the same people who push so hard for the UPC also love software patents."The headline is clearly a lie which some people just copied online, thus perpetuating false perceptions. Why relay fake news? This damages IP Kat's credibility as well as Bristows'. Some people tweaked the headline to "UPC to open in December? Believers vs agnostics in the IPKat," with replies such as "patent industry always lobbies for its own interest." Even at the expense of truth itself. Truth is simply an inconvenience to these people.

We're not even going to revisit our many past articles about how Annsley Merelle Ward promoted software patents. It's hardly surprising that the same people who push so hard for the UPC also love software patents.

Readers of the above were thankfully enough not gullible and comments were overwhelmingly negative albeit polite (maybe IP Kat just censors comments it does not like or maybe commenters self-censor to avoid being censored). We have not yet seen even one single comment that agrees with Bristows.

One person wrote:

Hopefully, whenever the UPC does start, the very significant effort that is currently being focused on pushing it through despite the obvious upcoming Brexit issue will be immediately refocussed on solving that issue... but somehow I doubt it.

Much like, when Newcastle get promoted to the Premier League I would hope that there is a plan to compete and thrive in that league and the cups but I doubt it.

Here is another comment, which starts by noting where Bristows comes from and then tackles the arguments made by them:

That people in UK having been involved in the setting up of the UPC do not want to see that investment having been in vain is quite understandable. This is certainly the case for Bristows and similar firms. This can understandably motivate a certain optimism. The same applies to Mr Hoyng, who was not really pleased with the reply he got from Mr Steenbeek in the EPLAW blog. I am of the opinion that Mr Stennbeek’s view is reasonable and correct, in spite of all the rest said in said EPLAW blog. Whatever is happening, the UPC is a court among member states of the EU and finally submitted to the jurisdiction of the CJEU. It might be true that Opinion 1/09 has not said much expressis verbis, but when one reads between the lines, Opinion 1/09 was the death knell of EPLA. Enforcement once UK leaves the EU has also not been solved yet. Does anybody seriously contemplate that the CJEU would accept something like EPLA, or without a proper regulation on enforcement? Envisaging the participation of non EU member states under those conditions is nothing more than wishful thinking. This is a first damper to optimism in the matter. In this respect, I take bets that any decision adverse to a party taken by the local division of the branch of the central division in London will end up at the CJEU. What then? In case of Brexit, UK would still have to accept the jurisdiction of the CJEU, which is politically not straightforward in view of the messages uttered by various UK politicians, starting with PM May. This is a second damper to optimism in the matter. If Brexit comes, which is rather certain, then the UPC would be part of the general bargaining between UK and the rest of the EU member states. I doubt that this is a perspective which will encourage patent proprietors to have their patents going to be scrutinised by the UPC. Uncertainty is anything but liked by industry and investors. So why should they go along with a system in which they do not know what their patent will undergo in case of litigation? It is thus to be expected that there will be a massive opt out until the situation has clarified. This is to me a third damper to optimism in the matter. It goes much further than looking for practical solutions. It not only needs a political will, but as well a legal framework to proceed with UPC once UK has left the EU. Simply saying lets ratify and see what comes out later is neither reasonable nor serious. To put a finishing touch: has anybody of the proponents of the UPC ever looked at the proportion of applications for an EPC patent from countries member of the EU, with or without UK? If one is optimistic it is about a third. If one is pessimistic it is less than a third. As the number of patents granted are more or less in proportion to the applications filed, which countries will mainly benefit from the UPC? Certainly not the EU member states, with or without UK. And from those applications how many stem from the SMEs? Claiming that UP and UPC is beneficial to European industry and SMEs is nothing more than a fallacy. This bring me down to the next question: who needs a patent in 25 countries at once? One should look at the number of validations of granted EPC patents before claiming that the UPC is an absolute necessity for European industry, and especially the SMEs. Lobbying for the UP and the UPC was quite remarkable, but lobbying is never innocent. I am neither optimistic nor pessimistic about the UPC, but there are so many problems lurking, that, whatever happens, I just hope that Europe will not one day regret having embarked on the UPC boat.

"Claiming that UP and UPC is beneficial to European industry and SMEs is nothing more than a fallacy" is the part that got Benjamin Henrion's attention.

UPC would be horrible to SMEs, as even SMEs admit and insist. Firms like Bristows love to just lie 'on their behalf'. They basically resort to lobbyists' AstroTurfing strategies these days, hijacking their opposition's voice.

Here is another comment:

Who are the numpties that are going to put their employer's/client's important eggs in one unitary basket? Own up. We need to know who you are so we can never employ you in the pharmaceutical industry.

Max Walters, saying that "solicitors have predicted," has released an article with a misleading headline -- similar to that of Bristows. Have they predicted or lobbied for it?

"Actually, there is a growing pushback right now and last night we contacted all the Lords about it."To quote: "The UK could ratify the European Unified Patent Court agreement as early as the end of March and the process is likely to face minimal opposition in committee, solicitors have predicted."

Actually, there is a growing pushback right now and last night we contacted all the Lords about it. People are beginning to realise that there is a legal firms' coup going on. There is a reactionary opposition to it and it's gaining momentum.

Here is another comment:

I find myself agreeing with Observer again. Well said sir / madam!

Anon at 6 March, 18:31 has a very good point too. Whilst it has often been said that the pharma industry will be a user / beneficiary of the UP system, I am not so sure. Who would want to put their prize possessions into a very uncertain and likely unstable system? Saving money on renewal fees (and potentially reducing litigation costs) is all very well, but the "old" system still looks better (more secure) on balance if you can afford it... which big pharma can.

I have to say that I have been utterly amazed by the glib way in which many proponents of the UPC have dismissed / minimised concerns raised regarding some of the detrimental effects of the UP system. Observer has pointed to two of the most serious of these, namely non-compliance with EU law and the (more than merely plausible!) problems enforcing UPC judgements in the UK. I have never seen any convincing arguments from a UPC proponent that explain why we should not be seriously concerned about these issues. But this is just the tip of the iceberg. Many more issues lie beneath.

Let me just raise one further issue now. Retroactivity. This is a huge problem with the UPCA. This is because that Agreement purports to apply new law to existing EP applications and patents. There are no transitional provisions whatsoever.

Now you might ask what I mean by "new" law. Really this relates to the provisions for indirect infringement, as well as the exceptions from infringement. In monoist countries (e.g. Germany and France), where ratification of the UPCA directly imports the provisions of that Agreement into national law, this could lead to quite a shock. This is because there will be instances where acts that did not infringe a patent one day will (with no change other than the UPCA coming into force) infringe it the next. Worse still, due to the absence of transitional provisions, previous acts could retroactively be held to be infringing.

This situation is of course absurd (and, moreover, contrary to general principles of EU law). But it does not appear to have bothered the legislators at all. However, I wonder if the legislators in France and Germany realise that (for all but national patents) they are just about to relinquish those nice, broad "Bolar" provisions that they took such care to draft? After all, the Bolar in the UPCA (which will take precedence over national law) is very narrow indeed.

The next comment says: "The best at all ist that it is neither necessary to follow the proof of the pudding approach nor to convince the author to get the PCC into operation ..."

Another comment to that effect elaborates on this:

As the pudding of proof agreed with my point, it is only courteous for me to return the complement. The narrowness of the Bolar provision provided by UPCA, which refers directly to the Directive demonstrates a serious lack of foresight from those who drafted this legislation. A complete failure to learn from the experience of others is pretty dumb. The Bolar provision has a clear, direct, effect on the European pharmaceutical industry and the benefit of broader provisions has been demonstrated to be economically beneficial. So much so that the UK updated its rules.

The argument against pharma using the unitary patent option may considered to be tempered by this narrow Bolar provision giving them improved protection, but I seriously doubt this to be an important factor. The other issues mentioned above are those that will be the determining factors against the unitary route.

The wording of the Directive appears set in stone within the UPCA. What if the EU decides to broaden the allowable acts, will this agreement be updated automatically?

Finally, why would the UK wish to remain within this patent union once it has left the EU, with so many important provisions being under the control of the EU and especially when such provisions have already been rejected?

Last but not least is this latest (so far) comment that uses a car-buying analogy:

One of the most particular things about the UPC is that the European Union needs the court which would be able to handle a bunch of litigations in a several national EU jurisdictions. Instead, the EU will receive with the UPC something quite different, i.e. a EU-wide court with an exclusive EU-wide jurisdiction in the long term.

So, it resembles the situation where you go to the shop to buy a car but return with a bought train.

SMEs do not need anything like the UPC because they operate locally. On the other hand, the UPC makes them ever more vulnerable to outsiders.

Here is how I put it in the first draft (contains typos) of "UK software companies oppose Unitary Patent ratification", which we co-authored with FFII and published yesterday:

Companies across the United Kingdom have expressed their opposition to an attempt to sneakily ratify, without public debate or even proper consultation, a treaty which is neither desirable to British companies nor compatible with Britain's intent to exit the European Union (EU).

After years of intense lobbying by large and often foreign corporations (outside the EU), as well as their patent lawyers who are situated in European, progress was made towards a litigation regime that would not only facilitate expansion of patent scope but also usher in so-called 'patent trolls'. A Unified Patent Court, or UPC, would not be situated in the UK, yet it's envisioned that it would have EU-granted authority to assert legal power over British companies and enable various large bodies, which operate in many different countries, to demand injunctions, royalties for supposed damages and so on from British companies. This represents an existential threat to a lot of British companies, which foreign companies are hoping to thwart or cripple using patents.

The UPC advances in an undemocratic fashion, led by few people who stand to profit from it, and steered by few politicians who neither comprehend the effect of the UPC nor care for the inherent incompatibility with Brexit.

Companies across he UK have not been asked for their input on it, but were instead talked about -- falsely -- by those eager to see quick passage, typically for personal gain. The British economy thrives because small companies are mostly protected from the wrath of software patents and since most of them operate locally they have no use for a system of patent assertion that is effective EU-wide; they would, however, become highly vulnerable if courts across Europe and outside the UK suddenly enabled large multinational corporations to make demands of patent settlements, embargoes, and potentially drive British companies into bankruptcy. That is the vision of the UPC and the motive for dozens of companies and nearly 100 individuals signing the petition at http://www.nounitarysoftwarepatents.uk/

Does IP Kat realise that by becoming a megaphone of Bristows it is actually doing a great disservice to the British industry? Or as I put it in Twitter the other day:

Engineers be like, "UPC? Who wants that s**?" IP Kay be like, "free 'content', Bristows? Will publish!" fake news from a bunch of law firms

In the next few posts about the UPC we are going to highlight yet more Bristows interventions in the process. We have, for quite some time, highlighted the nefarious role of this firm, e.g. in [1, 2, 3]. EPO workers ought to already know why all the above matters to them too (quote hereby repeated, below, right from the horse's mouth). ⬆

"When asked by Ars, the EPO's spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO's internal rules..."

--Dr. Glyn Moody