Related: New Paper Demonstrates That Unitary Patent (UPC) is Little More Than a Conspiracy of Patent 'Professionals' and Their Self Interest

Summary: The Unitary Patent or Unified Patent Court Agreement (UPCA) is going nowhere fast, but those who spent time and money promoting it for self gain continue to lie to the press with overly optimistic predictions, unrealistic timelines, and Kool-Aid about the supposed 'benefits' of the Unified Patent Court (UPC)

SEEING some of the latest developments surrounding the mythical Unified Patent Court (UPC) is... well, pleasing to say the least. It was inevitably going to happen. It was going to blow up. The nonchalance and self-deception of Team UPC was all along in vain. All it accomplished is, clients came for bad advice (notably on UPC) and maybe even fell for it.

Writing to us about the UPC discussion, one reader told us: "Do you remember the former Iraqi information minister who gained a lot of (doubtful) fame for his bizarrely distorted statements during the third gulf war (see this)? Why am I suddenly reminded of this when reading some claims made in the UPC context?"

Earlier today we saw decent publications such as IP Watch actually quoting the serial liars from Bristows regarding the UPC. Don't they know that Bristows staff will lie for profit? Even fabricate news (fake news) for the sake of the UPC?

Watch their cognitive dissonance in the wake of the election that led to May's coalition of chaos (possibly irreconcilable):

“We see no signs that the new political landscape is going to have any impact on the government’s plans concerning the UPC as they were prior to the election,” Rey-Alvite Villar told Intellectual Property Watch. The Conservative government is essentially the same, so there’s no reason why it would take a different position from the last government, he said.

Rey-Alvite Villar is not British and he works for a firm that's part of the UPC conspiracy. Why even quote these people on this subject?

A more balanced interpretation of the situation came from Thorsten Bausch (Hoffmann Eitle), who said this:

"My own interpretation (and at this point this is mere speculation, but too tempting not to mention it!) is that the Bundesverfassungsgericht’s request to the President is based on the pending constitutional appeals against the EPO on which I wrote earlier in this blog. If the Bundesverfassungsgerichts is of the preliminary view that any of the pending four constitutional complaints may have merit, it would make eminent sense to request the President, at least for the time being, not to sign the UPCA ratification bills and first await the Federal Constitutional Court’s decision on these appeals, in order not to create faits accomplis. The decisions on these four appeals are expected later this year, but an exact point in time has not yet been defined."

We don't know who filed the complaint, but we can guess. We still inquire about it.

Benjamin Henrion, who thinks that Dr. Ingve Björn Stjerna may have initiated it all, asked, "German companies and citizens will also have to rely on non-legally binding automated translations from English?"

The UPC is undesirable for all sorts of reasons. Very few would benefit from it at the expense of the large majority of individuals and companies.

Regarding Brexit, one person wrote: "Correct from the UK point of view - we leave in interesting times."

Leaving the UPC Agreement (UPCA) and possibly the EU as well.

Here is another new comment about it:

Does anyone know how long the Bundesverfassungsgericht will take to provide a ruling in this case? Indeed, is there any possibility for the proceedings to be accelerated, for example in view of the upcoming Brexit deadline?

I have not yet seen anyone seriously suggest that the UK can ratify the UPC after Brexit. However, if the BVerG takes as long with this case as is has done with the pending complaints relating to EP patents, then we could end up considering that very question in great detail.

The combination of the General Election, Brexit, and now the barriers at Europe's largest economy may prove lethal. Even pro-UPC publications such as IAM have begun expressing the view that UPC might never happen. At all! We gave some quotes and examples yesterday.

As we have been pointing out quite a few times, many views that are sceptical of or hostile towards the UPC are being deleted by Team UPC. There is an aggressive campaign of deception. They think they are fighting an information war in which all means at their disposal are permissible. We last wrote about the censorship 2 days ago.

In a censorship-rich thread about the UPC (at IP Kat, where many comments mysteriously fall into a hole) someone is now speaking of "problems with the current UPC agreement," stating that "everyone agrees that the current agreement would need to be amended..."

Squire Patton Boggs' Florian Traub and Gillian M. Dennis wrote this article about it in which they conclude that the German Federal Constitutional Court "could prevent the launch of the Unified Patent Court and Unitary Patent regime in its current form altogether..."

Here is the concluding part: "The ratification of the Unified Patent Court Agreement (UPCA) by Germany is likely to be delayed, knocking back, perhaps significantly, the launch date of the Unified Patent Court and Unitary Patent. It is expected that the Court will issue an order regarding the constitutional complaint in the next 6 months, raising the prospect of a delay of the Unified Patent Court and Unitary Patent into the first part of 2018. That presupposes, of course, that the complaint ultimately fails or the legislation can be remedied following directions by the Court. If however the Court finds the legislation unconstitutional in its entirety, it could prevent the launch of the Unified Patent Court and Unitary Patent regime in its current form altogether, as the regime cannot come into effect until Germany has ratified the UPCA."

The European Union without United Kingdom cannot go ahead with UPC. As someone in the commens put it, the "current agreement wouldn't enable the UK to stay in the UPC after Brexit"; Well, this is why it's practically dead. The UPC in its current form says "UK" and "London" in it. If the UK won't participate, then they need to rewrite the whole thing and restart the ratification process in every single member states. This can take years. And who knows what might happen in the mean time...

Here is one of the latest comments on the matter:

If G&P are to be believed (and I take this to be your position), the UPC - if it came into being under the provisions of the current UPC Agreement - would not form part of the national legal order of EU Member States. This means that bringing the UPC into being under the current Agreement would create a court that is not able to refer questions to the CJEU. This is because there would simply be no legal basis for the UPC to make such references.

The situation would be different if G&P were wrong in the sense that, under the current Agreement, the UPC would actually form part of the national legal order of EU Member States. In that event, the UPC could rely upon the authority of Article 267 TFEU to make references to the CJEU. The flip side of this, however, is that it would be impossible for the UK to continue to participate in the current UPC Agreement post-Brexit...

In other words, you can't have your cake and eat it.

The response to the above says this:

...you are still talking about the current UPC agreement.

Why?

Everyone agrees that the current agreement wouldn't enable the UK to stay in the UPC after Brexit. Everyone agrees that it therefore needs to be amended.

In those circumstances, I think it's rather irrelevant to take an abstruse point about whether the UPC (under the current agreement) would form part of the legal order of national EU states.

But I think where G&P are coming from, perhaps, is that the UPCA is an international agreement, which doesn't naturally form part of the EU legal order in and of itself. Currently it gets that status by reason of being a court common to a number of EU member states, and only EU member states. But it would lose that status when one of the states leaves the EU. Amendments are then required so that the EU legal order continues to apply in some other way.

Again, this can take a very long time and there is no guarantee that politicians will offer consent to the said amendments. The UPCA is basically stuck again and there is no imminent redemption, irrespective of what the UK does next. ⬆