Bristows typically deletes comments it does not like, but too many people would notice if Bristows overdid it

Summary: The Unified Patent Court (UPC) is practically dead in the UK and Ireland; Bristows, nevertheless, continues with its desperate spin

THE EPO barely mentions the word/term "UPC". Neither does the media. It's dead.

Bristows keeps pushing UPC agenda into blogs other than its own, even on a Friday night; we expected criticism to be selectively deleted, as usual (it happened before), but some of it is starting to show up. On Monday morning someone wrote to us: "Kluwer, where have all the comments gone?"

"Did you notice that there are almost no comments (published) on this piece since it was put online on Friday evening although similar posts in the past attracted a lot of feedback, mostly within hours? Why do you think this is?"

Looking at Kluwer Patent Blog this morning, we actually find 3 more critical comments, namely:

RIP

When the UPCA was drafted and signed, the UK’s involvement and the establishment of part of the central division in London were key feature. That the agreement could be open to non-EU members had never been envisaged. Brexit radically undermines these fundamental elements and, at best, the terms of the agreement need to be changed in a yet undefined way. So how can it be that the ratification of an agreement that has become obsolete and no longer reflects the will of its authors is still a topic in those countries that have fortunately not yet done so? And why on earth should the GCC submit such an outdated agreement to the CJEU in the circumstances?

Then someone from France (based on the URL/TLD) posted:

Dear proponents of the UPC and the post Brexit membership of UK,

When I see the problems which have led to an enquiry of of the Justice Sub-Committee of the House of Lords’ EU Committee, see

http://ipkitten.blogspot.fr/2017/12/role-of-cjeu-post-brexit-to-be.html

with respect of UK courts, I would like to hear why there are no problems with the UPC, which first, does not exist yet, and, secondly does not seem concerned by the enquiry, as it is not a UK court.

Please abstain from the standard reply: because it is an international court. If difficulties are foreseen in respect of enforcement for UK courts, it is hard to understand why an international would not be exposed to the same difficulties post Brexit.

The Lords seem to be concerned by legal certainty. Where is the legal certainty for the UPC?

It does not seem that the UPC was mentioned in Phase 1 negotiations, so it is unlikely to be mentioned in Phase 2 negotiations, which should start soon. Quo vadis UPC?

And one last comment (for now):

I am interested in your comment that “It rationalised correctly, however, that the UPC was an international court”. Am I correct to interpret this as meaning that you agree with Gordon & Pascoe’s characterisation of the nature of the UPC (as an “international court”, as opposed to a Benelux-style “court common to the (EU) Member States”)?

If so, could you please explain to me how the UPC can possibly refer preliminary questions to the CJEU? As I understand it, a court is only able to access the procedure under Article 267 TFEU if it is “a court or tribunal of a Member State”. If the UPC is an international court, then this would appear to take it out of the ambit of Art. 267… which would then appear make the UPC non-compliant with EU law.

I may be missing something here, and so any clarity that you can help to bring to this situation would be much appreciated.

But that's not it. There's even more from Bristows staff at IP Kat this morning, attracting the following comment:

Worth reading and linking together are the article on Kluwer and the comments posted on that article.

http://patentblog.kluweriplaw.com/2017/12/08/brexit-deal-means-unitary-patent-system/

IP Kat's/Bristows' SPC advocacy (covered here yesterday) is also being mentioned:

For me, SPC law is more important than the UPC. The interpretation of the SPC as absorbed into UK law must still follow the EU approach until it is re-written by parliament. Likely, UK judges will rely on CJEU judgments, both existing and post-Brexit. Referrals to the UK Supreme Court may be required, but may be unwise as there is not even a part-experienced patent judge on the panel. Referrals to the CJEU, if not possible, would leave UK judges to make up their own minds - not a bad thing, possibly.

Team UPC/Bristows is then being called "zealots":

It appears clearly the their Lordships are worried about legal certainty after the Brexit, and hence their enquiry. This applies to U.K. courts, especially their relationship with the CJEU and in matter of enforcement.

Not a word about the UPC! As it does not even exist, no wonder.

Could at least one of the UPC zelotes explain where they find any form of legal certainty in the post Brexit participation of the UKin the UPC, especially when it comes to enforcement? Please do not come up with the worn out argument it is an international court, and the Administrative Committee of UPC will fiddle a bit, so that everything will be honky dory!

Apparently no word about the UPC in Phase 1 negotiations, so nothing about the UPC in Phase 2.

As another blogger said, the UPC is barely a blip on the government radar.

Dear zelotes, wake up to reality, it is better for you. It will hurt, that is the only certainty. My grand father used to say, that if you stick your head in the ground, do not be surprised that you then get your bottom smacked! Still valid today.

Notice how every single comment is hostile. Readers know they are being lied to.

Regarding the UPC, the FFII's President has asked: "Do they have a constitution in the UK? At least I heard there was a constitutional court #upc #rule_of_law"

With news about the Irish judge rising to the surface last night and earlier this morning (it looks like they're letting Judge Corcoran back in; a source of ours cites "[t]he President of the Boards of Appeal as of Monday 11 December in execution of the judgements 3958 and 3960 of the administrative board of the ILO of 6 December 2017.") it's also worth quoting this new comment about the UPC situation in Ireland, an English-speaking country which indefinitely postponed the UPC referendum. "Ireland has to have a referendum on this patent court and granting if jurisdiction as it clashes with our constitution," said the comment. "I'll be thinking long and hard about what I'll be voting for, that's for sure." ⬆