Bonum Certa Men Certa

Marks & Clerk is Still Pushing Patent Maximalism Agenda in Europe and Britain, Including UPC/UPCA/Unitary Patent (UP)

Selling lawyers' time at hundreds of pounds per hour

Half past three



Summary: Lies about patents, about the EPO, about Britain and about the UPC are still being disseminated by British firms and publishers that stand to gain from an epidemic of patent lawsuits (because they profit from the very problem they help create and exacerbate)

Marks & Clerk is one of the largest firms in the domain of patents. They profit from patents. The greater the number of patents (and patent lawsuits), the more money they will make (at the expense of actual companies that actually make something). A couple of years ago Marks & Clerk said that the EPO nowadays makes it easier to get abstract patents on mathematics than the USPTO. They must be very pleased. They also push adverts (in the form of 'articles') for the UPC, e.g. this one. Marks & Clerk is basically a very big contributor to the problem.



"Marks & Clerk is basically a very big contributor to the problem."Sure, there are other contributors to the problem, notably Bristows and paid advocates of the UPC (disguised as 'media'). They are lobbyists of patent trolls and software patents agenda. Managing IP sets up UPC lobbying events and so did IAM, which had received funding for that from the EPO's PR firm (i.e. the EPO indirectly). They carry on pushing rather toxic (to patent law) agenda. Earlier this week both of them wrote about RPX being scooped up by HGGC. "RPX accepts $555 million private equity offer," IAM wrote. "The sale of RPX to HGGC at $10.50 per share follows a review of strategic alternatives by the board," Managing IP wrote on Tuesday. That odd figure, 555, is not a coincidence. They're not serious. It's not actual cash but some "pen and paper" stuff, shares, etc. They're talking about stocks. It's a nice way to spin the likely death of RPX. We don't expect it to operate much longer; maybe it will be sold in pieces.

"In fact, EPO recruitment of Brits had gone down by 80%]."Yesterday, Joff Wild (IAM's chief) advertised another upcoming propaganda of IAM. "IAM's Auto events in the US and Europe this month are motoring towards sell-out," said the headline. How many seats are there? It didn's say. They just use classic marketing tactics. Typical IAM. On the very same day (hours apart) Ed Round who is a European Patent Attorney at Marks & Clerk published some auto-themed propaganda at "The Engineer", which is a British news site. Marks & Clerk does not seem to understand that many British people now know that the EPO is defunct and not worth pursuing due to Battistelli's sabotage. In fact, EPO recruitment of Brits had gone down by 80%. That was even before the referendum on exiting the EU (so-called 'Brexit').

This article is so misguided for a lot of reasons, yet patent maximalists who profit from patent maximalism at the EPO (like Marks & Clerk does) market themselves by bashing the British into pursuing bad EPs, assuming only patents indicate progress. To quote some portions:

Transport has traditionally been one of the UK’s leading sectors for filing patent applications, according to the European Patent Office’s (EPO) rolling log of patents filed and granted. The latest statistical release from the EPO however, looking at patent filing data from 2017, reveals that transport is no longer the UK’s top filing sector, with more patents applications from the UK filed in the medtech category in 2017.

[...]

There are several other issues which might be impacting the number of filings coming out of the transport sector. As the race to deliver viable driverless cars continues, and with technology making vehicles – as with everything else – ever smarter, increasing volumes of the patentable technology going into next generation transport projects might not fall under traditional ‘transport’ filing categories. Sophisticated on-board technology, sensors for safer driving and the complex algorithms that underpin self-driving vehicles, will all be filed under categories more related to software and computing than engines and drivetrains. Machine learning too is a technology with increasingly broad applications in everything from traffic coordination to rail and air traffic control and again is something that won’t be captured in the ‘transport’ category at the EPO.

[...]

While the dip in transport patent applications is far from indicative of a sector that isn’t investing in the future, there are things to consider, especially with regard to applications from the UK. While the trend in the UK roughly follows that of the EPO as a whole, if we look at numbers of patent applications filed in any given year, the UK lags far behind some of our closest competition, such as France and Germany. For the UK’s 322 patent applications in the transport category in 2017, France applied for a total of 1044 while Germany applied for 1877, nearly six times more than the UK!


So the bottom line or underlying message from Marks & Clerk is: contact Marks & Clerk for 'consultation' and patenting (or lawsuits) in Europe. It's pure marketing disguised as information -- typically a specialty of Battistelli, who literally bribes the media for such pieces (we have covered many examples over the years).

"Resistance to that sabotage of the European patent system (basically flooding it with low-quality and bogus patents) is ever more crucial."UPC/UPCA/Unitary Patent (UP) agenda is also circulating this week.

One person who writes for lawyers' sites said: "My own thoughts (for what it’s worth) is that the benefits that the #UPC gives IP owners outweigh the (not insignificant but also not heinous) EU link. Still, it wouldn’t surprise me to see the issue bubble up as a “betrayal of democracy” before long."

"If by "IP owners" you mean large pharmaceutical giants," I told him, "subsidised by taxpayers for R&D, and not even based in Europe (just trying to embargo rivals, generics)."

He liked my remark, so I'm assuming he agrees with it. The UPC isn't really of much use to the vast majority of European businesses; worse -- it's actually detrimental to the vast majority of European businesses. People who comment in IP Kat pointed it out earlier this week and this latest comment in the thread speaks of Brexit as the reason UPC 'ratification' in the UK is rather meaningless:

For the sake of argument, let's assume that the UPCA can come into force in its current form (ie with the UK's participation and including a court in London).

In this scenario, Brexit gives rise to a conundrum for the courts: what to do when, for a non-unitary EP validated in the UK, a question arises regarding the interpretation of EU law?

Presumably, the UPC would (at least try to) refer questions to the CJEU. However, if Brexit goes according to the government's current plans, then the UK courts would be unable to make such references.

So does this mean that, for post-Brexit litigation concerning (only) the UK, a patentee's ability to secure preliminary references to the CJEU will depend upon factors such as: whether unitary effect has been requested; the opt-out status of the patent if no unitary effect has been requested; and the forum (eg the national court) in which the patent is litigated?

If so, then this seems to add yet another level of absurdity (and uncertainty) to the practical effects of bringing the current UPCA into force.

For example, consider what might happen if the UK Supreme Court decides to take its own path with regard to the interpretation of "inherited" EU legislation (such as the Biotech Directive or the SPC Regulations). This could mean that the outcome of litigation in respect of the UK will be subject to both forum-shopping and post-grant choices by the patentee (re: unitary effect and/or opt-out status).

Whatever happened to the concept of legal certainty for third parties?


There's an information war waged by the EPO and Team UPC; IAM, Managing IP, and firms like Marks & Clerk embedding themselves in news sites and blogs are trying to sell us a ruinous agenda while repeating lies like "IP for SMEs" (that's even a hashtag the EPO repeats all the time). Resistance to that sabotage of the European patent system (basically flooding it with low-quality and bogus patents) is ever more crucial.

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