Bonum Certa Men Certa

In an Effort to Push the Unitary Patent (UPC), EPO and the Liar in Chief Spread the Famous Lie About SMEs

Rule of thumb: everything that the EPO says nowadays is a deliberate lie.

Ear



Summary: The EPO wants people to hear just a bunch of lies rather than the simple truth, courtesy of the people whom the EPO proclaims it represents

THE EPO offers nepotism and fast lanes to large corporations. It panics when the public finds out about it and constantly lies about the matter, stating that it protects SMEs, small inventors and so on. The European Digital SME Alliance has already refuted some of these lies, but that wasn't enough to make the lies stop.



As a matter of priority, even though it's past midnight right now, we've decided to compose a quick rebuttal/response to today's EPO lies (disguised as 'study', as usual). What a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.

"hat a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual."The latest lie was promoted in Twitter in the late afternoon. I responded by stating that the "first EPO announcement in more than a month spreads a lie, the famous "SME"-themed lie [in which the EPO] makes up more "SME"-themed lies in order to sell the [other] lie that UPC is good for SMEs. See last paragraph."

Yes, I used the word "lie" quite a lot. It's as simple as this. They lied deliberately.

The official 'news' item (epo.org link), which quotes the 'king', as usual (self glorification), ends like this:

They also highlight the benefits that SMEs can expect from the planned Unitary Patent. These include savings in time and money, as well as increased legal certainty across the EU market.


That's a lie. Even insiders know that it's a lie and yet later in the day (earlier tonight) the Liar in Chief, Battistelli, promoted (epo.org link) the same Big Lie that SMEs want the UPC (it would kill them). From his closing paragraph:

As we look to the future of SMEs and patents, the case studies underline the significant role that the Unitary Patent and Unified Patent Court are set to play in IP strategies. Many of the SMEs featured talk about how the cost-effectiveness of the Unitary Patent and the jurisdiction of the Court will help them expand into other European markets, previously unconsidered by those same companies. Potential savings of up to 70%, a simplified application process with the EPO acting as a one-stop-shop and greater legal certainty will all prove attractive features of the UP and UPC. So, whether they use the Unitary Patent or the classical European patent, or a combination of both, the future holds a wealth of opportunities for SMEs to make the most of patents. It is our hope that these case studies will help increase understanding of how IP can play a fundamental role in the success of SMEs.


That's a lie again. It's a lie that the EPO promoted in another tweet that said: "This publication gives you full access to twelve case studies on the benefits of IP for #SMEs http://bit.ly/SMEstudies2017 #IPforSMEs"

They even came up with a hastag for it: #IPforSMEs

It links to this page (epo.org link), which gives the veneer of a 'study' to something that's a lie to the very core.

"So don't expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance)."First of all, the UPC isn't happening. The UPC Preparatory Committee has in fact just officially admitted that their plan is derailed (no schedule) due to the situation in Germany. Team UPC wrote about it some hours ago. The best spin they could come up with was this: "The Preparatory Committee of the Unified Patent Court (UPC) has today published a short update, in which it notes that the pending case in the German Federal Constitutional Court will cause delay to Germany’s ratification of the UPC Agreement (UPCA) and the Protocol on Provisional Application (PPA) and concludes that it is currently difficult to predict any timeline for the start of the new system."

So don't expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance). Even observers in the field know damn well that the UPC would be an SME killer. There were several comments to that effect in IP Kat on Thursday (today). Well, after the site stopped covering the scandals we rely on comments there; the authors/Kats (who now include CIPA) certainly won't say anything negative about the UPC.

"What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP?" (Unitary Patent)

That's what the first comment (relating to the earlier ones) said:

Thanks to Proof of the pudding for his interesting contribution on the law applicable for infringement.

I have a further question with respect to validity, which is also to be decided by the UPC.

What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP? In other words, in case of conflict between decisions of the UPC and the TBA.

At the latest conference on the UPC in Munich, Sir Jacob made it clear that for him the UPC will be the leading court in Europe. In other words, the UPC decisions should prevail. By doing so he forgets that there are also other non-EU member states at the EPO. And they also deserve some respect.

One example: it is abundantly clear that the boards of appeal of the EPO have taken a strict stance in respect of added subject-matter. What if the UPC waters down the requirements? This thought is not abstruse when one looks at certain national decisions in this respect.

The UP being a patent to be granted by the EPO, the examining and opposition divisions are bound to follow the case law of the boards of appeal, and especially that of the enlarged board. The strict stance will be maintained be it only for this reason.

If the UPC is more lenient in the matter, which is to be expected, the only way to have a patent scrutinised strictly on this point is to file an opposition at the EPO. Otherwise it might become difficult to have a strict view on the matter. That proprietors prefer a more lenient way is obvious, but the opponents will want exactly the opposite.

At the recent INGRES Conference reported in another blog on IPKat, Mr Hoying made an interesting comment. According to his view, “Art. 54(3) EPC [is] a big problem which leads to multiple patents for the same invention (and – via divisionals – unacceptable uncertainty of third parties). Why can EPO and Dutch courts not read “the content of European patent application” broader? The skilled person should always read (when reading for Art. 54(3) EPC purposes) with the common general knowledge and consider each combination with the common general knowledge as disclosed”.

This is to me a clear attempt to water down the requirement for novelty which is goes like an Ariadne thread through all decisions of the enlarged board, novelty, added subject-matter, priority, divisional applications and disclaimers.

If the UPC follows this line, then we can say good bye to certainty in this matter. Is this really want is good for the users of the system? For US companies yes, as they have never understood the problem, for European companies, and especially EU and SMEs among them, certainly not.

In any case, the uncertainty will remain. And to me, this is not good for business, unless it has deep pockets.

By the way, at the latest conference on the UPC in Munich, Sir Jacob made it also very clear what he thought of opposition divisions and the boards of appeal: an opposition is playing waiting for Godot! This is not very kind, to say the least.

To me, the problems with the UPC are not only when it comes to infringement as exemplified by Proof of the pudding, but also when it comes to validity.



Then, in reply to it, someone recalled Battistelli's attack on TBA and said: "I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance."

To quote the whole comment:

I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance. They may potter on for a while in Haar but their glory days are over.

The independence has been so far eroded despite or perhaps as a result of the fig-lesf reform in 2016 so that they can no longer be seriously considered as an independent judicial instance. The "President" of the Boards of Appeal cannot even appoint his deputy without the approval of the President of the EPO (nota bene: the EPO President and not the Admin Council has the final say here). The President of the EPO also has the final say over the promotion of Board members.

The plan of the EU manadarins seems to be to replace the EPO Boards of Appeal by the UPC. That much is clear from Jacob's comments.



The next one said this:

The Boards of Appeal are likely not to survive the upcoming decisions of the German constitutional court, be it only because the Enlarged Board itself in a recent and disastrous disciplinary case stated it was under the influence of the President of the office.

This entirely changes the situation which prevailed for decades, when earlier decisions rightly concluded that the members of the Boards were judges in all but name.



As the next and final comment put it, "revocation actions at the UPC are likely to be an order of magnitude more expensive."

It explained how the UPC would crush SMEs -- something we have said repeatedly for years.

Here is the full comment:

Hmmmn. If that is true, then we could be looking at a very dark future indeed.

Oppositions at the EPO could hardly be described as a "low-cost" exercise. However, on any realistic assessment, revocation actions at the UPC are likely to be an order of magnitude more expensive.

It is therefore all too easy to envisage disastrous consequences for SMEs (and the public) across Europe if the UPC becomes the only forum for revoking European patents. That is, if the cost of knocking out a "bad" patent that has been asserted against you becomes prohibitively expensive, and the market for litigation insurance has (predictably) failed to materialise, how do you stop the "trolls"?

There is another factor could make this a "perfect storm" that could devastate important areas of industry across Europe, especially those that are largely populated by SMEs. That is, we need to consider that the management of the EPO has, in recent years, engaged upon a drive to grant as many patents as possible. It is clear to anyone who has been paying attention that this drive has involved a "light touch" approach to examination... thus greatly increasing the likelihood that patents will have been granted with overly-broad claims, or perhaps even no valid claims at all.

So, we could end upon with more "bad" patents and the prospect of hugely increased costs for knocking out such patents. Who would that benefit, I wonder?

Whilst I am very reluctant to believe in conspiracies, even I have to admit that the actions of the current EPO management (grant rate forced ever upwards, Boards of Appeal hobbled, chances of the opposition procedure surviving the constitutional complaints in Germany correspondingly decreased...) all seem to be tailor-made to benefit only a certain section of the patent ecosystem. We shall just have to wait and see whether this is the result of accident or design.


The last paragraph (above) is key. It spares us the need to once again explain why UPC would be an SME killer, contrary to what the EPO claimed 5 times today (new page, news item, blog post and 2 tweets).

It will actually be news when the EPO stops spreading lies.

Comments

Recent Techrights' Posts

The Lawsuit by Clients of Brett Wilson LLP Against Brett Wilson LLP is Officially On, It is Progressing, The 'Experts' Pick Outside Law Firms (RPC and Mills & Reeve) to Spare Them From Litigants in Person
So it is probably quite potent
The 'Culture Wars' in Free Software Have Gone Out of Control
Social control media amplifies such utterly infantile discourse
Teaser: To Compensate for the Fact Our Clients Are Terrible Human Beings Who Strangle Women (While on Microsoft's Payroll) and We Get Paid by Mystery Parties We Bombard You and Your Wife With Almost 10 Kilograms of Legal Papers
If you can't win an argument, then drown the other side with papers?
Now Confirmed in Western Media: Microsoft Azure Layoffs This Month
Affirmed by more sources moments ago
10 Out of 10: RMS Attracts Massive Audience in Göteborg, Sweden (All Seats Occupied, Some People Standing)
a 55-second clip of his talk
Slopwatch: Plagiarism and "Linux" Articles by Bots
Sites that do this won't survive; many of them rely on slop services (suppliers) that will cease to exist after the bubble bursts
 
This Past Friday, "Nearly 700 People Came to Listen to RMS!" (Richard Stallman)
"Nearly 700 people came to listen to RMS!"
Distinguished Lecture by Richard Stallman This Coming Monday in Rome
After "Free software, Crucial for Freedom in a Digital World"
Slopwatch: UbuntuPIT Churning Out Plagiarism and the Slopfarm LinuxSecurity Turns to Pseudonyms
Our hunch is, UbuntuPIT will sooner or later realise that this toxic approach is just harming UbuntuPIT and tainting the reputation of past articles
Gemini Links 11/10/2025: Nyctography, Gerrymandering, and Lurking
Links for the day
Links 11/10/2025: World Mental Health Day 2025, Another European Legal Defeat for Microsoft 360
Links for the day
MIT Technology Review is Part-Time SPAMfarm of Billionaires and Mega-Corporations
Does MIT operate its own "b2b" SPAMfarm?
Open Source Initiative Executive Director Leaves, Replacement Sought by Monopolists, Not the Community or OSI Members
Serves to show who runs this show...
Links 11/10/2025: China-US Tensions Grow Again, "Hey Hi" More Widely Recognised as Bubble Made of Capital That Doesn't Exist
Links for the day
Peter O'Callaghan QC represented grandparents, Westernport Hotel, at Liquor Royal Commission
Reprinted with permission from Daniel Pocock
Either The Register MS Divests From FOSS Coverage or Liam Proven is on Long Holiday
Publishers perish when their audience loses trust in them
Microsoft Cancelling Another Datacentre is a Sign of Financial Trouble and Lack of Growth
The debt continues to grow
Gemini Links 11/10/2025: An Evening at the Fair and Fast Fourier Friday
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 10, 2025
IRC logs for Friday, October 10, 2025
Geminispace is Very Large
The word continues to spread and the number of participants grows
Another Wave of Microsoft Layoffs, This Time During National Day Holiday
This time it's China again
Staying Happy in Times of Crackdowns on Civil Society
Optimism in this sort of "new reality" or "new normal" seems like something for the irrational person
"Nobel" Exploited Posthumously for "AI" Hype, Now They Do the Same With "Quantum"
ere have been many jokes about "Nobel" for peace (often granted to pro-war people) and a fake one for "Economics" (establishment propaganda)
Links 10/10/2025: Putin Admits Russia Downed Azerbaijan Airlines Jet, More New Heat Records
Links for the day
Noteworthy Claim That IBM is Firing a Lot of Lawyers This Week (RAs in the Legal Department)
A lot of what they do is patent 'trolling' or lawyering up against their own staff (e.g. HR disputes)
Links 10/10/2025: US Judge Bars Attacks by ICE On Journalists and Protesters; “We Took The Freedom of Speech Away” Says the President
Links for the day
Slopwatch: Serial Sloppers, Google News Gifting Slopfarms, and Fake News/Plagiarism About "Linux"
Google itself is a slop pusher these days
Qualcomm, the New Owner of Arduino, Blasted for Its Software Patents Tax on 'Smartphones'
A lot of Qualcomm's patents are on software. We wrote about this in prior years.
XBox Layoffs Rumours, Downtime, and Criticism From XBox Co-Founder
"everyone is ditching the xbox."
Links 10/10/2025: Honoring The Legacy Of Robert Murray-Smith, Many Articles on the Hey Hi (AI) Bubble
Links for the day
Gemini Links 09/10/2025: October Gothic and Reading Middle Earth Role Playing; C and Ada
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 09, 2025
IRC logs for Thursday, October 09, 2025
Links 09/10/2025: Farewell to Jane Goodall, California Bans Algorithmic Price-Fixing
Links for the day
Gemini Links 09/10/2025: Lost Wages and a Saga Of Continuing To Use Palm PDAs
Links for the day
Richard Stallman's Talk in Helsinki is Done. Tomorrow Göteborg.
There are scarce details in Finnish about Dr. Stallman's talk
New XBox Leaks Probably Serve to Confirm XBox's Collapse (Many More Layoffs)
It's very much consistent with what many other sites have reported lately
The Slop Song
The train wreck marches on
LLM Slop/Advanced Plagiarism Flooding the Zone With Capital That Does Not Exist
Many publishers out there still participate in this bubble instead of calling it what it is
Links 09/10/2025: Sacked Microsoft Workers Make "Sackbird", IBM Taps CockroachDB for PostgreSQL
Links for the day
"Happy Hacking Day" Richard Stallman Talk This Afternoon (From 14:00 to 16:00) at Haaga-Helia University in Pasila
Richard Stallman in Helsinki, Finland
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 08, 2025
IRC logs for Wednesday, October 08, 2025
Links 09/10/2025: Impact of Microsoft Layoffs, More Data Breaches
Links for the day
Gemini Links 09/10/2025: Autumn Blues and C IRC Bot
Links for the day