Summary: Dr. Ingve Björn Stjerna is publicly named as the person behind the UPC deadlock; the EPO is meanwhile pretending -- as arrogantly as always -- that no such deadlock exists and urges people to pretend it's already a reality

THIS may be news to some (if not many). The main barrier to UPC (other than Brexit) is a complaint from Ingve Stjerna, a longtime watcher and critic of the UPC. For those who don't know yet, the UPC is a scourge and a curse to Europe. It helps nobody but the litigation 'industry' (or those leaning to litigation for profit, notably patent trolls).

"It helps nobody but the litigation 'industry' (or those leaning to litigation for profit, notably patent trolls)."This post will not delve into the technicalities of the UPC or the legal impediment to implementation thereof. Instead, assuming many readers already heard the above news, we'll go through some of the responses.

There is a battle right now; the battle happens -- among other places -- at the EPO. The litigation microcosm, which we often refer to as "Team UPC" (similar agenda to Team Battistelli), wants to sacrifice the entire continent for a quick buck (or euro). These people lie to the media about it and even hijack the voices of Europeans (individuals and businesses). This isn't new. They have been doing this for nearly a decade. Battistelli has, at a personal capacity, been doing this since before he was EPO President (Ingve Stjerna covered that at the time and it's in his latest book).

"Battistelli has, at a personal capacity, been doing this since before he was EPO President (Ingve Stjerna covered that at the time and it's in his latest book)."Bech-Bruun's Martin Dræbye Gantzhorn and Emil Bjerrum wrote and published this article earlier this week. It speaks about the Court of Appeals for the Federal Circuit (CAFC) in the US and it strives to expand the scope of patents in Europe. While the EPO and SIPO (China's, not Croatia's) move towards granting patents on just everything, in the United States the courts say "No" to a growing number of US patents (a subject we shall cover later tonight in a separate post).

Here is a portion from the new article of Dræbye Gantzhorn and Emil Bjerrum:

A US District Court decision of 4 August 2017 reduced the chances of patenting diagnostic methods. This decision illustrates well the challenges of applying for a patent on medical devices for diagnostic methods in the USA and EU.

[...]

The EPO does not exercise the same restrictive approach of distinguishing an invention from discoveries. Instead, however, the applicant will have to make sure that the invention is not categorised as a diagnostic method, the description of which includes all of the four steps from examination, collection and testing of data to the attribution of the deviation to a particular clinical picture.

So patent maximalists led by Battistelli and Team UPC can simply mis-classify a patent application in an effort to get around the rules. Curiously enough, the judge who is on house ban at the EPO (against the rules) issued a ruling against something akin to the above; it was one of his latest decisions if not last decision. When people do their work properly at the EPO (namely scrutiny of patents) they tend to get punished. Such is the implicit policy of Battistelli: grant or perish.

"So patent maximalists led by Battistelli and Team UPC can simply mis-classify a patent application in an effort to get around the rules."Now, about the UPC, Team UPC's Fiona Nicolson (Bristows) would have us believe that there's progress in the UK. Nothing can happen here (really!) because of Brexit, yet this article that's promoted by Team UPC is titled "Draft UPC legislation laid in Scottish Parliament".

I too could have something "laid" in the Scottish Parliament when I visited it 3 years ago; that does not imply anything is going to happen. Almost nobody from Team UPC even bothered mentioning that over a month ago UPC was dropped from the agenda of the English/British Parliament. How come?

Similarly, back when Germany and German politicians with financial stake in the UPC did nefarious things, Team UPC was either silent or lied about it. Bristows in particular did a whole marathon of hogwash. They didn't want political riggers to get caught.

"Similarly, back when Germany and German politicians with financial stake in the UPC did nefarious things, Team UPC was either silent or lied about it."Thankfully, Ingve Stjerna explained to the authorities what Team UPC had done. He even went through videos of a 1AM hearing to manually identify faces of a few dozen people among ~600 politicians. The latest article/paper from him explained what happened and it's truly jaw-dropping that Germany would stoop to such a level; it makes even Volkswagen look honest!

It's no longer a secret that Ingve Stjerna is the man behind the complaint. SUEPO was exceptionally quick to take note of it. Earlier today, within just hours of this original report, SUEPO took note of Mathieu Klos‏'s article. It's all about Ingve Stjerna. He first tweeted this in German and later in English too. "Identity revealed," it said, "author of Constitutional Court case against UPC is Düsseldorf lawyer Ingve Stjerna" (he also tweeted teasers about it, like: "More details about DE constitutional complaint soon on juve.de")

Ingve Stjerna is a brave man; we already dropped some hints about it (as soon as the complaint had been filed), but now everybody knows.

From the original article: "Lange wurde spekuliert, wer Ende März das Beschwerdeverfahren gegen den UPC-Vertrag beim Bundesverfassungsgericht eingereicht hat. Wie JUVE nun aus Politikkreisen erfuhr, handelt es sich bei dem Beschwerdeführer um den Düsseldorfer Rechtsanwalt Dr. Ingve Stjerna."

"Ingve Stjerna is a brave man; we already dropped some hints about it (as soon as the complaint had been filed), but now everybody knows."We wish to caution EPO staff; Team UPC will target the individual, starting personal attacks as part of their lobbying campaign behind the scenes. Team UPC has always been nothing but a collective of thugs and liars. Just like Battistelli. Some of them already tried to compare me to "Daesh" or paint me as some kind of Russian stooge.

In reality, Ingve Stjerna is a friend of EPO examiners in the sense that he can redeem examination from the planned obsolescence/collapse of EPO (to make way for UPC and mass litigation).

Watch closely the behaviour of Team UPC in the coming few days or weeks. "What everybody thought" was the response of one German UPC booster (to the news about Ingve Stjerna).

"Duesseldorf-based Attorney at law Dr. Ingve Stjerna filed appeal against #UPC before German Constitutional Court... as I then speculated," wrote another UPC booster.

"Watch closely the behaviour of Team UPC in the coming few days or weeks."A longtime UPC critic, Francisco Moreno‏, said this to me in Spanish: "Sí, hay que ser valiente para poner en riesgo ingresos de tu gremio. No es casualidad que ejerza como abogado independiente (no en despacho)"

It means something like: "Yes, you have to be brave to put at risk your Guild."

Someone who choose the Twitter handle "UPCtracker" (quite revealing of the bias) said: "This riddle out of the way, time to focus on the substance of the complaint, if any."

So now starts the nitpicking, which will likely be accompanied by some personal attacks or scandalisation (same tactics used against Michelle Lee, PTAB and others).

"So now starts the nitpicking, which will likely be accompanied by some personal attacks or scandalisation (same tactics used against Michelle Lee, PTAB and others)."Translation of the above tweet, as I responded to UPCtracker, is: "we don't care if UPC is a series of serious abuses, we just need it to profit from lawsuits!"

Meanwhile, the EPO acts as though it's business as usual for the UPC. There's an ongoing event about it in Munich, organised by Managing IP who told me today [1, 2]: "UPC judges: Last we heard - 'recruitment process postponed'. NB: UPC Advisory & Administrative Committees responsible for appointments. [...] UPC judges: Administrative Committee (and others) established after UPC Agreement Protocol enters into force. Germany's consent required."

Nothing is happening any time soon. We wrote about it just over a week ago. There is no Unitary Patent, the UPC may already be a lame duck/dead, but watch what the EPO tweeted today: "What is the procedure for obtaining a #UnitaryPatent from the EPO? This guide explains it..."

"Stop advertising things that don't exist," I told them.

"Meanwhile, the EPO acts as though it's business as usual for the UPC."Remember when Team UPC advertised job openings for jobs that did not exist and probably never ever will exist? Will the EPO be taking payments for UPC-related services even though the UPC may never exist at all (anywhere)?

Also today the EPO was once again advertising a Margot Fröhlinger event that we mentioned before. "There’s still time to register for the #roadshow with @EPOorg," it said. Why would anyone want to pay to be lied to by the EPO about the UPC? It beggars belief!

Managing IP's coverage from its event the other day said this: "Raimund Lutz says Germany's Constitutional Court has asked for comments on the UPC lawsuit. #EUPatent2017 # unitary patent"

We wrote about it yesterday (specifically this tweet). UPCtracker (the real name is Thomas Adam by the way) responded with: "Q is: who was asked. If EPO (Mr Lutz' employer) specifically, could imply structure of BoA relevant for DE constitutional cmplt after all?!"

"By all means notice how, even though great uncertainty looms over the UPC, the EPO and Managing IP (working together in Munich this week) carry on pretending it's inevitable."I told him that the "EPO is not a patent office but a lobbying operation that's exempt from the law and commits crimes" (no accountability, so why not?)

Managing IP mentioned the UPC in another tweet from its event: "Final session: UPC's ADR Centre & patent arbitration. @ClemensHeusch: CJEU in Huawei said 3rd party decision, so not mediation #EUPATENT2017 pic.twitter.com/lD1tzkjsMp"

By all means notice how, even though great uncertainty looms over the UPC, the EPO and Managing IP (working together in Munich this week) carry on pretending it's inevitable. As Ingve Stjerna put it earlier this year, "the UPCA's entry into force is not at all secured." ⬆