Bonum Certa Men Certa

The European Patent Office Has Just Killed a Cat (or Skinned a 'Kat')

IP Kat, which historically gave a voice to EPO workers and whistleblowers, has never been the same since the EPO's sanctions

The Guardian view on prosecuting WikiLeaks: don’t do it

Context (in the news this weekend and on Friday):



Summary: The EPO's attack on the media, including us, resulted in a stream of misinformation and puff pieces about the EPO and UPC, putting at risk not just European democracy but also corrupting the European press

THE EPO's thuggery managed not only to silence IP Kat's criticisms but also, apparently, to turn it into a UPC propaganda mill, headed not by one but several firms that stand to benefit financially from excess in litigation. The EPO accomplished something similar with IAM and dividends continue to be paid. What gives?



"We are quite justified with our assertion that the blog is Bristows-run these days."Sometimes we joke that IP Kat has become AmeriKat i.e. Bristows with its UPC agenda. Just look at the blog's activity in the past week. The 8th post in a row yesterday was from Bristows and later came a ninth. We are quite justified with our assertion that the blog is Bristows-run these days. The Bristows worker says her "new IP idol [is] Brad Smith (Microsoft)," the man who engages in patent blackmail against Linux (we have written about his nefarious activities for over a decade). Need we remind readers that Microsoft bankrolled the event?

The only short break from the Bristows marketing was this EPO puff piece. Vardy offered a little break from the Bristows marathon and accomplished nothing but embellishment of the EPO's image.

"Vardy offered a little break from the Bristows marathon and accomplished nothing but embellishment of the EPO's image."Is this the same IP Kat that wrote about the EPO last year? It has come to our attention that there is a little more going on behind the scenes. Vardy says nothing about the existential threat to the EPO and violations of the law, pretending there's smooth sailing. So does FRKelly, which in this new piece ("Changes in European Patent Office practice following findings of lack of unity") completely overlooks the crucial point that EPO search quality is nowadays terrible, as reaffirmed by internal leaks.

"Is this the same IP Kat that wrote about the EPO last year?"FRKelly says that "from 1 April 2017, the EPO now provides applicants with a provisional opinion on the patentability of the invention (or unitary group of inventions) first appearing in the claims together with the Partial Search Report – see notice in the Official Journal of the EPO here."

But what good are such reports if they are prepared in a rush? Stakeholders have already publicly complained about this. One of them said that even the Spanish patent office (not particularly renowned for leadership in this area) does a better job than the EPO and at a much lower cost.

Where are those anonymous writers at IP Kat who used to write about those things? The founder has retired and the pseudonym shared by multiple people ("Merpel") is no longer even mentioned in the blog (it used to be habitually thrown into the mix). Where are the Joe Hills and the Rosa Parks? Why do we feel like it's mostly us, The Register and sometimes Juve that really still care about the EPO? Caring about the integrity of the Office is the opposite of caring about Battistelli's reputation.

"Stakeholders have already publicly complained about this. One of them said that even the Spanish patent office (not particularly renowned for leadership in this area) does a better job than the EPO and at a much lower cost."Just look what Bristows has turned IP Kat into! It's shocking! It's a disgrace. Even EPO workers tell us that. They are definitely not happy. The most signal that can be derived from IP Kat these days is in the comments. Responding to the EPO's Margot and Bristows (which carried Margot's message about the UPC), this one person wrote: "It is amazing to see what is coming out now in order to save the UPC."

Yes, well...

Truth does not matter at IP Kat when the chronic liars of Bristows run the show. Here is the comment in full:

It is amazing to see what is coming out now in order to save the UPC.

UPC is an agreement reserved to EU member states. This is a fact which seems conveniently forgotten.

As long as UK is member of the EU it might ratify. Once out of the EU it cannot any longer be part of the UPC, at least in the present form.

This means that: 1) the participation of UK in the UPC post Brexit will be part of the bargaining under Art 50. Any more enchanting perspective? 2) provisions have to be found how to transfer pre-Brexit judgements of the UPC into the UK legal system. This might be the easiest part, although it does not appear as simple as it may look at a glance. 3) provisions about enforcement post-Brexit of UPC judgements in the UK have to be devised. This is a point which has been conveniently dodged up to now by all proponents of the post-Brexit participation of UK.

I see here three reasons of great uncertainty. Can, in all honesty and in view of this uncertainty, any representative suggest to his client not to opt-out until any of those points are cleared?

That US industry and PAEs are interested in the UPC is pretty obvious, but should not be taken as a push to satisfy this need.

Here the Commission oversees a great danger and belittles the point of view expressed for instance by IP2P(?) about the danger of trolling. I am not convinced that the harmonisation effect heralded by the Commission will eventually be a benefit for European industry in general and SMEs in particular. In the case of patents subsidiarity might be better.

And now CH and NO should come into the UPC! Ever heard of Opinion 1/09? One should not forget that it was the death knell of EPLA!

As a commenter wrote: is this "knowledge, blind optimism or desperation"? A nice summary!


Responding in another thread -- the one in which Bristows tackled those who warn about the UPC and trolls -- one person wrote:

Kindly note that the UPC fee for a COUNTERclaim for revocation is between EUR 11k and EUR 20k, depending on the value of the case. Especially if the defendant in the infringement case is an SME, it is unlikely that the maximum revocation fee of EUR 20k will have to be paid, because this only occurs if the value of the case exceeds EUR 2 million.


So a business would need at least 11,000 Euros (at least!) to drive trolls away. And how many trolls would there be under a UPC-like regime? Some patent law firms earn this much in a month, sometimes per person, but for SMEs in Europe that's a lot of money. It can cost a lot of jobs. And who benefits? Firms like Bristows and trolls. Firms that give bad advice to clients, possibly even an intentionally bad advice...

And back to the propaganda from Battistelli's right-hand UPC woman (Margot), here is a quoteworthy new comment:

Any idea what I tell my client about UPC cases that are ongoing on Brexit day? For example, if on Brexit day there is an ongoing UPC case where infringement is exclusively in the UK, what happens?

Quite frankly, the statement that "uncertainty is unlikely because legal provision will inevitably be made to deal with the treatment of, for example, pending UPC cases on Brexit day" is ridiculous. That uncertainty already exists and will continue to exist unless and until the specifics of the assumed provision are finally decided on.


Here is another comment:

Uncertainty is not unlikely it is likely! The statement should be read correctly.

That an ongoing case in UK on Brexit day will continue is not at stake here. The uncertainty lies in the how it will happen in the UK. This might be solved if only UK is at stake.

There is however also an uncertainty, but much larger then, on what will happen if it affects not only UK but other contracting states on Brexit day, whether or not it is taken by a UPC court having its seat in UK.

This leads inevitably to the post Brexit enforcement problem.

Not everything revolves around an island bordering the North Sea. After all ridiculous for ridiculous, who is the more ridiculous??


"The UPC may have already been derailed for good, but Team UPC just won't want to admit it..."It's quite sad when all that's left of value in IP Kat are anonymous comments. The blog is otherwise an utter disgrace of no value to anyone, except those in the echo chamber who love being deceived (patent maximalism is music to their ears).

The UPC may have already been derailed for good, but Team UPC just won't want to admit it (it profits from lying to clients about it) and Luke McDonagh, a scholar from London, said that the General Election this year "will certainly delay Unified Patent Court, may even derail it..."

"Bristows staff (in various different platforms) just lies to everyone, as we have repeatedly demonstrated here over the years."He was linking to Team UPC's analysis, which quotes the article by Max Walters, who in turn serves as Bristows' megaphone. Team UPC said: "In an article in the Law Gazette, Robert Burrows, partner at Bristows, says a start date of early 2018 for the Unitary Patent system could be a more realistic possibility."

No, it can be altogether called off and it's the most likely thing given the inherent incompatibility of UPC and Brexit. To quote the more independent view:

In the same article, Luke McDonagh of the Law School at City University London is more pessimistic: ‘It is clear there will be a delay now. Everything is likely to cease pending the election. The decision to ratify may even be up in the air.’


Be careful of anything IP Kat will say in the coming days about UPC (in light of the General Election). Bristows staff (in various different platforms) just lies to everyone, as we have repeatedly demonstrated here over the years. "Nobody said the creation of a new patent system covering all EU member states was going to be easy," Team UPC added (after the failure). Actually, Team UPC did insinuate this, repeatedly even. Now that they're losing all their marbles they start engaging in a bit of revisionism, too. It's an attempt to recover some credibility and save face.

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