Bonum Certa Men Certa

Deconstructing the Latest 'Damage Control' From Team UPC Amid Demise of Unitary Patent Pipe Dreams

UPC cartoon



Summary: A breakdown of responses to Britain's exit from the EU (as per Article 50), with its mortal impact on the Unified Patent Court that was long envisioned and lobbied for by the patent microcosm

THIS WEEK was a dark week for EPO management. They spent a fortune promoting the UPC (even paying publishers!), which is now essentially dead. For those who don't know why the UPC is a very terrible idea, a reader prepared the above cartoon to demonstrate what the UPC would accomplish if it ever became a reality (maybe reused graphics but source unknown/unspecified in this original tweet). It's all about domination over European companies, not by European companies, certainly not the 99% of them that are not multinational giants (like Philips).



The response to the news was unsurprising. Will Team UPC acknowledge defeat and move on? Never! Their media, as well as their own blogs, will sing the same old tune, which is "real soon now!" (they have been saying this about the UPC for over half a decade now, even predating the buzzword "UPC").

"It's all about domination over European companies, not by European companies, certainly not the 99% of them that are not multinational giants (like Philips)."Here is one example of this. "UK’s ratification of UPC agreement delayed," according to the headline. But no date is given. They mean called off. Until further notice at least. The word "delayed" is loaded as it implies that this will happen sooner or later. To quote this article (from the patent microcosm's 'news' site): "On the eve of the UK government triggering Article 50 to kick off the Brexit negotiations, it is looking less likely that the country will ratify the Unified Patent Court (UPC) Agreement before the start of EU talks."

Or ever! Forget about it. The headline could easily be written to say something more honest, but the site has an agenda. It's not Europe's agenda but some law firms' agenda.

As Benjamin Henrion put it, "the UPC camp will say UK still has 2 years to ratify."

2 years. 22 years. What's the difference anyway? It's always "real soon now". It's always inevitable, unstoppable, just a matter of time or whatever. We have grown tired of these sick lobbying tactics.

"It's not Europe's agenda but some law firms' agenda."What does the mainstream British media say down in London? The Financial Times was already bribed by the EPO (another brilliant Battistelli policy) and then promoted the Unitary Patent (on numerous occasions even), so those within the patent microcosm who cite it must be desperate or simply ignorant about the financial strings. This one says "May 'softens' on role for the #CJEU post Brexit ... a chink of light for the #UPC?"

No, nothing of that kind.

Dr. Glyn Moody quoted earlier today a tweet from the Financial Times that said "European Courts will have "no future role" in UK law after Brexit, insists David Davis..."

Moody continued by stating "so that means no flights between UK and EU, no? also, no #UPC..."

Here is another concerned voice saying "Certainty on UK's #UPC ratification needed ASAP Wednesday briefing: Brexit – the next two years start now..."

"Dr. Glyn Moody quoted earlier today a tweet from the Financial Times that said "European Courts will have "no future role" in UK law after Brexit, insists David Davis..." "Needed for who? Team UPC? Uncertainty is needed. The UPC is not happening here and it's good for British firms. The last thing they would want is UPC certainty of any kind. The only such certainty is being given by Team UPC itself, as it continues to mislead the public about the situation. As the EPO paid a lot of money to all sorts of publications we must wonder if this new article too is some kind of 'placement'. They're just quoting Battistelli's lies about the UPC (in the Canadian press). This is a fine example of poor journalism or perhaps PR money at work.

What does British press for lawyers say? Well, a prominent site went with "BREXIT: Triggering of article 50 makes UK's ratification of new Unified Patent Court more uncertain, says expert" (more or less accurate). Here is the opening part:

Christopher Sharp of Pinsent Masons, the law firm behind Out-Law.com, said the triggering of article 50 of the Treaty on European Union by the UK government on Wednesday makes it less certain that the UK will formally ratify the UPC Agreement.

Sharp said many were surprised in November when the government announced that it intended to move forward with plans to ratify the UPC Agreement.


But that was Lucy, who has since then been fired or resigned. We wrote the following series about it at the time.



What does Battistelli's lapdog (IAM) say? Well, it links to the above article and says: "Think this is true, but government does seem to be pulling back on its previous no ECJ absolutism."

"They are again spreading uncertainty and doubt about ECJ, probably as part of their longstanding lobbying endeavour."No. See the above quote from/about David Davis himself. They are again spreading uncertainty and doubt about ECJ, probably as part of their longstanding lobbying endeavour.

"They won't pull back," an EPO insider told IAM, "in fact just the opposite will happen !"

Looking at Team UPC blogs and sites, it's quite a parallel universe!

Marks & Clerk, for example, having repeatedly lied for UPC ratification purposes, is trying to sell services now. Well, only a fool would trust anything they say on the UPC given their track record. They now state that "[i]t is important to note that a unitary patent is not available if a European patent is granted before the Unitary Patent and UPC systems come into effect."

"Looking at Team UPC blogs and sites, it's quite a parallel universe!"What a loaded statement. We're not even at the stage when the UPC even exists! They've already taken it one step ahead. How typical of them...

Here is another law firm trying to sell services around this news. "What is less certain is the fate of the Unitary Patent and Unified Patent Court (UPC)," it says. "Both of these systems - currently predicted to come into force by the end of 2017 or start of 2018 - are currently only open to EU members. If the current timetable does not slip significantly, these are expected to come into force while the UK is still an EU member and therefore they will apply to the UK. What is less clear is whether the UK can remain a member of the Unitary Patent and UPC after leaving the EU. This is likely to be one of many issues on the table in the upcoming negotiations."

Notice how they already shift the expected day to 2018. They just can't stop changing their predictions all the time. Later this year they'll say 2019, then 2020. So much for 'legal advice'...

Moody spotted this passage from an article shared by Christopher Weber from Germany: "Kommt der Brexit, steht das gesamte neue europäische Patentsystem wieder auf der Kippe – noch bevor es überhaupt gestartet ist..."

A rough translation from German: "Comes the Brexit, is the whole new European patent system back on the brink - even before it is ever launched" (unedited, automated translation).

"Notice how they already shift the expected day to 2018. They just can't stop changing their predictions all the time."Yes, it's a dead project.

Weber had said: "Maybe time again to point out what I said about the #UPC 2 days before the #brexit #Referendum [...] We'll what I said was more in the vein of: we could get up to 2 years delay + cost/benefit relation will change. [...] I learned since then that at least big parts of the industry want to go ahead with UPC w/ or w/o UK."

That's a lie. Law firms (and big clients) are not "big parts of the industry", though Weber insists that they are. A UPC-like regime would be good for patent trolls, but Weber just calls "trolls" people whom he does not agree with.

Henrion asked him, "big parts of the industry means large companies?"

Weber responded in a self-defeating fashion with "People from Bayer and Siemens said so at last year's GRUR, so, yes. I have not heard to the contrary from any part of industry."

"Law firms (and big clients) are not "big parts of the industry", though Weber insists that they are."Monsanto and Siemens is "big parts of the industry"? They're more like patent bullies. Of course they would want the UPC! Easier litigation everywhere.

"Wake up and face reality," the EPO insider then noted. "UPC is DEAD !"

Lies are abundant among Team UPC. In fact, they have become the norm. Consider what Withers & Rogers, for example, just published. It seems to be a law firm that patently lies. "Great for SMEs," it said about the UPC. "Chance to leverage 25 country injunctions in a single action. Lower court fees."

How many SMEs even operate in 25 countries? SMEs themselves have already refuted this lie and Henrion told the above firm, "trolls not SMEs."

"Lies are abundant among Team UPC."Maybe in the eyes of law firms, "small" companies that come to them make nothing at all excerpt lawsuits.

Anyway, the UPC certainly looks like history and it may take several years before any clear answers are available. Does this mean that the 'Mafioso' at the EPO will have an excuse to demand another extension of his term, going into his seventies in clear defiance (yet again) of the rules? It would not surprise us at all.

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