Bonum Certa Men Certa

The Unified Patent Court (UPC) is Not Happening, But Kluwer Patent Blog Pretends It's Already in Force

As if the only question now is who governs it

Self-Fulfilling Prophecy
"...the beginning, a false definition of the situation evoking a new behavior which makes the original false conception come true" --Sociologist Robert K. Merton on Self-Fulfilling Prophecy



Summary: The truly delusional writings, not to mention intentionally dishonest creed, show that Team UPC is a threat to truth itself, not just to the European economy

THE EPO scandals are no longer being covered -- let alone mentioned -- in so-called 'IP' blogs. It's seen by them as "not beneficial"; they'd rather just sweep EPO examiners under a rug somewhere.



"Looking at some of the comments that made it through the censorship, it seems clear that even Kluwer Patent Blog contributors (Thorsten Bausch at least) found the article misleading.""Limiting your European Patent nationally" was the title of this blog post from Kluwer Patent Blog yesterday. It was the first blog post in a long time. It was published along with another propaganda piece about the UPC. It was authored anonymously, but it certainly looks like the author was Bristows cloaked as "Kluwer Patent blogger". As usual, comments are being 'sanitised' there, so a real discussion cannot be made visible. One must assume that dissent gets deleted to protect the propaganda. Maximalists are happy about it (this is being promoted via patent maximalists). Team UPC keeps pretending that no barriers exist after that awful IAM 'interview' (widely criticised around the Web). Notice the loaded headline which makes the reader assume that Unitary Patent is in force and what remains to be decided is under whose wing. The headline is merely a quote/quote-mining: "EU should bring Unitary Patent system under its control" (quoting a "former chief economist of the EPO").

Here's a little portion:

Still, even if the German complaint is rejected and the Unitary Patent system enters into force at the end of 2018 or in 2019, van Pottelsberghe doesn’t expect too much of an impact on innovation – which is in principle what patents are all about.


One UPC booster said:

Which wd be the end of any UK #UPC participation: „[T]his single layered system should be much more an EU endeavour and not in the hands of a ‘dreadfully independent institution composed of 38 stakeholders of member states’, accdg to van Pottelsberghe.“


A phrase such as "end of any UK UPC participation" is misleading for two reasons; first of all, the UK never participated and secondly the UPC never existed and probably will never exist. We recently wrote a lot about why Britain can never participate in anything like this:



Meanwhile, this new press release came out [1, 2]. This came out in the UK, advertising a "2 Day Conference for Senior Patent Administrators (London, United Kingdom - September 27-28, 2018)" and saying the following: "It will help you understand how recent changes at the EPO, WIPO, USPTO and the Unitary Patent Court will impact your role."

Will?

Putting aside the fact that the UK cannot participate, the UPC isn't happening. This merely perpetuates a falsehood. Further down, under day two, it says there's a 12.45 session on "The Unified Patent Court".

Maybe they believe that if they carry on pretending that the UPC is just about to start, then it will actually happen.

Looking at some of the comments that made it through the censorship, it seems clear that even Kluwer Patent Blog contributors (Thorsten Bausch at least) found the article misleading.

Thorsten Bausch wrote:



Thank you for collecting this interesting opinion. My only comment is that I found the headline slightly confusing. What I understood Prof. van Pottelsberghe to suggest is not so much that the EU should bring the Unitary Patent system under its control – he argues rather, and rightly in my view, that the EU should bring the EPO (European Patent Office) more under its control. That, he argues, would enable the EPO to serve and be part of the EU’s industrial policy, for the sake of European consumers, universities and entrepreneurs.

I agree with him now, but must admit that there were times in the past when I was of a different opinion and thought it is actually a good idea to have a Patent Office that is outside the EU and not committed to serve its industrial policy or other political agendas of the day. I saw it as a great chance to achieve European unification and harmonisation beyond political borders and even including countries having quite different political systems. Which it has been and still is. Clearly, if the EU brings the EPO more under its control, this may serve to exclude non-EU countries, at least in the long run.

However, the current status of the EPO as an international organisation that enjoys immunity, but is not supervised effectively and lacks any effective integration in a judicial system that safeguards elementary human rights and the rule of law is highly problematic and probably not sustainable in the long term future. Were the EPO to become an organ of the EU, this would definitely change for the better.

In any case, it is time to re-think the entire European Patent Organization, in my view.


An earlier comment said this:

I can agree that the advent of the UP system would “make the patent system in Europe quite complex”. I can also agree that “the European Commission should find a way to bring the EPO more under its control”. However, I believe that Mr van Pottelsberghe has seriously underestimated the complexities on both of these points.

For example, the “international” status of the EPO has so far enabled the management of the organisation to effectively ignore even basic principles under human rights laws (such as the right to a fair trial or to COLLECTIVE bargaining). Under these circumstances, and given the principle of supremacy of EU law (INCLUDING the Charter of Fundamental Rights), how could it be possible for the Commission to “control” the EPO in any way?

On the other hand, the advent of the UP system promises to bring into effect a system in which post-grant “game-playing” by patentees can not only change the forum in which a patent is litigated but can also change the law of infringement that is applied (and hence change the outcome of the litigation). Such a system is not just “complex”, it is absurd. It also dispatches the concept of legal certainty to the dustbin of history.

I have never seen any such complexities even acknowledged (let alone taken into account) in connection with a “study” on the possible benefits of the UP system. So you will have to forgive me if I am more than a little cynical about the chances of that system doing anything other than providing an additional advantage to those patentees having the deepest pockets (who will be best placed to take maximum advantage of the insane levels of complexity and uncertainty that are inherent in the system).



A person who used to comment a lot in IP Kat (barely did lately) said:

Ah, the European patent “system”! A bit like the famous old Punch curate’s egg, eh? “Good in parts”.

Which part is good? Why the EPC and the Established Caselaw of the Boards of Appeal of the EPO, of course. This is a roadmap for everything to do with eligibility, patentability and validity of patents, and it provides hugely more legal certainty on all of these matters than anywhere else in the world. It is a benchmark for national Supreme Courts all over the world, something Europe should be very proud of and something industry in Europe should be very grateful for.

How did this come about? Some might suggest that it is precisely because the EPC and the EPO’s established caselaw has been conceived, written and implemented free from political influence and control. rather, the EPC and the EPO simply strive to dispense justice and fairness between i) patent-owners and ii) their competitors constrained by the patents the EPO issues. Reasonable certainty for the public, yet a fair scope of protection for inventors. Good patents enforceable, bad patents struck down.

So I’m not convinced that putting the EPO under more political control is in every respect a good thing.

But I’m with Thorsten and others that it would be a good thing for the basic rights of employees at the EPO.

In the end, these two issues are, for me, very important, but I’m doubtful how much they matter, for Professor Bruno van Pottelsberghe.


The above, from MaxDrei, shows that Kluwer Patent Blog fails to convince even its own readers of what it is trying to say about UPC. Maybe the target audience is some gullible politicians.

Recent Techrights' Posts

Google Has Mass Layoffs (Again), But the Problem is Vastly Larger
started as a rumour about January 2025
Electronic Frontier Foundation Defends Companies That Attack Free Speech Online (Follow the Money)
One might joke that today's EFF has basically adopted the same stance as Donald Trump and has a "warm spot" for BRICS propaganda
 
Early Retirement Age: Linus Torvalds Turns 55 Next Week
Now he's almost eligible for retirement in certain European countries
Gemini Links 22/12/2024: Solstice and IDEs
Links for the day
BetaNews: Microsoft Slop is Your "Latest Technology News"
Paid-for garbage disguised as "journalism"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 21, 2024
IRC logs for Saturday, December 21, 2024
Links 21/12/2024: EU on Solidarity with Ukraine, Focus on Illegal and Unconstitutional Patent Court in the EU (UPC)
Links for the day
[Meme] Microsofters at the End of David's Leash
Hand holding the leash. Whose?
Deciphering Matt's Take on WordPress, Which is Under Attack From Microsofters-Funded Aggravator
the money sponsoring the legal attacks on WordPress and on Matt is connected very closely to Microsoft
Gemini Links 21/12/2024: Projections, Dead Web ('Webapps' Replacing Pages), and Presentation of Pi-hole
Links for the day
American Samoa One of the Sovereign States Where Windows Has Fallen Below 1% (and Stays Below It)
the latest data plotted in LibreOffice
[Meme] Brian's Ravioli
An article per minute?
Links 21/12/2024: "Hey Hi" (AI) or LLM Bubble Criticised by Mainstream Media, Oligarchs Try to Control and Shut Down US Government
Links for the day
LLM Slop is Ruining the Media and Ruining the Web, Ignoring the Problem or the Principal Culprits (or the Slop Itself) Is Not Enough
We need to encourage calling out the culprits (till they stop this poor conduct or misconduct)
Christmas FUD From Microsoft, Smearing "SSH" When the Real Issue is Microsoft Windows
And since Microsoft's software contains back doors, only a fool would allow any part of SSH on Microsoft's environments, which should be presumed compromised
Paywalls, Bots, Spam, and Spyware is "Future of the Media" According to UK Press Gazette
"managers want more LLM slop"
On BetaNews Latest Technology News: "We are moderately confident this text was [LLM Chatbot] generated"
The future of newsrooms or another site circling down the drain with spam, slop, or both?
"The Real New Year" is Now
Happy solstice
Microsoft OSI Reads Techrights Closely
Microsoft OSI has also fraudulently attempted to censor Techrights several times over the years
"Warning About IBM's Labor Practices"
IBM is not growing and its revenue is just "borrowed" from companies it is buying; a lot of this revenue gets spent paying the interest on considerable debt
[Meme] The Easier Way to Make Money
With patents...
The Curse (to Microsoft) of the Faroe Islands
The common factor there seems to be Apple
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, December 20, 2024
IRC logs for Friday, December 20, 2024
Gemini Links 21/12/2024: Death of Mike Case, Slow and Sudden End of the Web
Links for the day
Links 20/12/2024: Security Patches, Openwashing by Open Source Initiative, Prison Sentence for Bitcoin Charlatan and Fraud
Links for the day
Another Terrible Month for Microsoft in Web Servers
Consistent downward curve
LLM Slop Disguised as Journalism: The Latest Threat to the Web
A lot of it is to do with proprietary GitHub, i.e. Microsoft
Gemini Links 20/12/2024: Regulation and Implementing Graphics
Links for the day
Links 20/12/2024: Windows Breaks Itself, Mass Layoffs Coming to Google Again (Big Wave)
Links for the day
Microsoft: "Upgrade" to Vista 11 Today, We'll Brick Your Audio and You Cannot Prevent This
Windows Update is obligatory, so...
The Unspeakable National Security Threat: Plasticwares as the New Industrial Standard
Made to last or made to be as cheap as possible? Meritocracy or industrial rat races are everywhere now.
Microsoft's All-Time Lows in Macao and Hong Kong
Microsoft is having a hard time in China, not only for political reasons
[Meme] "It Was Like a Nuclear Winter"
This won't happen again, will it?
If You Know That Hey Hi (AI) is Hype, Then Stop Participating in It
bogus narrative of "Hey Hi (AI) arms race" and "era/age of Hey Hi" and "Hey Hi Revolution"
Bangladesh (Population Close to 200 Million) Sees Highest GNU/Linux Adoption Levels Ever
Microsoft barely has a grip on this country. It used to.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 19, 2024
IRC logs for Thursday, December 19, 2024