Bonum Certa Men Certa

Perpetuating the Big Lie That Unitary Patent (UPC) is About to Kick Off

The EPO wrote this (below) more than two years ago

UPC



Summary: The (in)famous old lie about UPC being "just around the corner" is still being circulated, mainly if not only by patent law firms which stand to benefit from a litigation Armageddon in Europe

"TEAM BATTISTELLI" (EPO management) is expected to lie a lot. About nearly everything. The same goes for "Team UPC," basically a subset of law firms, primarily those that profit from litigation, patent trolls and so on. These people do not care about Europe; they just want to ensure that Europe keeps attracting lots of ruinous lawsuits, necessitating a lot of lawyers.



"These people do not care about Europe; they just want to ensure that Europe keeps attracting lots of ruinous lawsuits, necessitating a lot of lawyers."Lies about the Unified Patent Court (UPC) have become very routine. Left unaddressed, many people risk falling for them. Many inside Team UPC already live in an echo chamber, surrounded by mutually-reinforcing messages; they live in a bubble, to put it rather bluntly. Today we present some new examples of it (from earlier this week).

Yesterday, rather unsurprisingly, IP Kat was propping up Team UPC's Kool-Aid (probably Bristows') in order to advance the UPC's agenda. This blog should be renamed "CIPA Kat" as this is what it basically got reduced to after the founder (Jeremy) had left. This is what they wrote:

In the aftermath of the ratification of the UPCA by the UK last month, Kluwer Patent Blog has published an interview with Bruno van Pottelsberghe, Professor at the Solvay Brussels School of Economics and Management and a former chief economist of the EPO. In ‘EU should bring Unitary Patent system under its control’, Van Pottelsberghe discusses the benefits of the Unitary Patent regime to the business community, NPO concerns, German stance, and the role of EPO.


We already wrote several responses to this Kluwer Patent Blog 'article'; so did many commenters (those that managed to survive the censorship regime of Kluwer Patent Blog -- a regime which became even tougher some months ago, shortly after commenters had criticised the UPC and articles about the UPC).

"Lies about the Unified Patent Court (UPC) have become very routine."In addition to this, some Battistelli-friendly French law firm propped up the UPC in France days prior to Bristows joining in. Surely enough, Stanislas Roux-Vaillard (Hogan Lovells) has just joined in [1, 2] by stating:

Importantly, this Order does not specify which law should be applied by the French courts during the UPC transitional period; it will be for French courts to decide whether they should apply the substantive provisions of the UPC or the French law (the latter solution being the recommendation of the Preparatory Committee’s interpretative note) for issues like the Bolar exemption.


Notice the tenses; they insinuate inevitability and persist with some arrogant certainty that the UPC will actually start and the only remaining questions are some minor technicalities. That is very far from it. Robert Burrows from Bristows is meanwhile obsessing over Bulgaria as if the UPC's fate has much to do with a small economy without many EPs (32 EPs granted last year and 20 the year prior to that). Merely keeping the perception of momentum?

"Merely keeping the perception of momentum?"An article by Wolfgang Schönig and Robert Grohmann (Morrison & Foerster LLP) has just stated (in the headline even) that "Germany Is Lingering To Ratify" (as if it's just a matter of time, as per the definition of the word linger). To quote:

While some commentators struggle with how membership of the UPC is compatible with the stated BREXIT aim of "taking back control", when essentially signing up to a European patent litigation system does exactly the opposite, others emphasise that the UPC is nothing but a logical evolvement of the European Patent Convention, an international patent system that (despite its name) is not exclusive to EU Member States, and that the UPC may be open to non-EU countries, too.

[...]

It remains to be seen whether timing will prevent the UK from participating in the UPC.


It's not about timing. And the UPC is an EU thing; just check the underlying text. These people keep lying about it because law, to them at least, is just some 'pesky' thing to be worked around rather than be respected. The above sentence also puts forth the wrong question, a loaded question. This wrongly assumes or wants us to believe Unitary Patent will happen (and only the UK's participation is up in the air). It won't happen and thus the UK's participation is irrelevant a question/conundrum.

"It won't happen and thus the UK's participation is irrelevant a question/conundrum."Abigail Woodhouse, an attorney from a law firm, persists with using tenses like "will" in relation to the UPC; as though it's inevitable and likely imminent; From this long new article titled "Patents and trademarks in 2018":

Woolhouse: On World IP Day, 26 April 2018, the UK became the 16th Member State to ratify the Unified Patent Court Agreement (UPCA), which defines a new two-part patent system comprising the Unitary Patent (UP) and a new court, the Unified Patent Court (UPC). The UP will be a single patent right in up to 25 Member States of the EU and enforceable in the UPC by single judgement effective in all UPCA member states. Importantly, the UPC will also have jurisdiction over conventional European Patents. This system will endure and run alongside the UP, thus requiring proprietors to actively opt-out if they wish to avoid the UPC’s jurisdiction. It is quite possible that the UP and UPC could be in action before Brexit in March 2019. As it now stands, Germany is the only remaining mandatory party required to ratify before the new system can be brought into effect.


But no, the UK cannot participate in such a system and without the UK there's no UPC; this is in fact one of the considerations to be taken into account by the FCC in Germany. It's in the constitutional complaint.

"Notice how pretty much all of the above (pro-UPC spin) comes from the legal 'industry' as opposed to the real industry which actually makes and sells things."Do facts no longer matter? These people keep perpetuating falsehoods and myths like "IP" (above), corresponding to a propaganda term, "Intellectual Property" (not the same as actual laws, such as patent law). Stephan Kinsella wrote a great deal about this propaganda term and his latest podcast about it came out yesterday.

The matter of fact is, the UPC would serve nobody but these law firms and their largest clients, many or most of which aren't even European.

Yesterday, Philipp Cepl and Kokularajah Paheenthararajah (DLA Piper) wrote about Düsseldorf in relation to increase in liability risks. To quote some bits:

In its two recent decisions, the Düsseldorf Higher Regional Court redefined the requirements for the infringement of second-medical-use patents. Besides the cases of "purposeful preparation" of a medicament for the protected use, now, a direct infringement also "in some other way" may be considered if the medicament is objectively suitable for the patented use and the supplier takes advantage of external circumstances, which ensure that the offered medicament is used for the patented purpose. Thus, the recent case law increases liability risks for the infringement of secondmedical-use patents.

[...]

The recent case law of the Düsseldorf Higher Regional Court increases the risks of liability for the infringement of second-medical-use patents since a direct infringement now also has to be taken into account if due to external circumstances it is evident that the medicament will be used for the patented purpose.

The main field of application of this case law are cross-label-use cases as pointed out by the Düsseldorf Higher Regional Court, where only a carve-out will not be sufficient to prevent liability anymore. Besides that, also such cases may become more relevant where guidelines of medical associations or directives (e. g. of the German Joint National Committee or the Medical Chamber) may recommend certain diagnostic or therapeutic procedures, which may not be explicitly mentioned in the SmPC or package leaflet and the execution of which may realize the protected teachings of the patent. Also here it is to be expected that irrespective of the existing patent protection physicians will generally comply with such scientifically justified and practiceoriented recommendations at least insofar as they reflect medical standards.


Imagine how much worse it might (or would) get in Düsseldorf if Team UPC ever got its way and litigious firms/trolls dragged the whole of Europe into such German courts. Also yesterday (afternoon) Thorsten Bausch wrote about the Federal Court of Justice of Germany. A blog colleague wrote about the Court of Appeal of Barcelona (Spain). Both pertain to patent cases -- ones in which the only party guaranteed to win is the legal 'industry'.

Notice how pretty much all of the above (pro-UPC spin) comes from the legal 'industry' as opposed to the real industry which actually makes and sells things. That in its own right ought to serve as a reminder of who crafted the UPCA and pushes the hardest for UP/UPC.

Recent Techrights' Posts

LLM Slop (Lots of It Spewed Out by Microsoft) Versus Linux
Microsoft is a very, very evil company. It doesn't mind destroying the Web if there's a chance it'll make a buck in the process or mess up people's brains (in Microsoft's favour).
Slopfarms (Sites That Only Ever Publish LLM Slop) Are Killing Google News
pair of slopfarms still propped up by Google News
Microsoft's Serial Strangler's Law Firm Has a Long History of Fronting for People Who Do Bad and/or Illegal Things
Whose terrible idea was this?
Links 25/03/2025: Clownflare’s Slop and Bounties on Fake Patents
Links for the day
Let Them Eat 'Apps'
Go Appless
Linux Runs Almost Everything, But They Almost Never Tell You This (No Marketing Budget)
Only about 1% (or at most 2%) of the Linux Foundation's budget goes towards Linux; a lot is routed towards Bill Gates and Microsoft promotion
Free Software Community Folks Are Closer Together Than the Cliques and Opportunists Rallying Around "Open Source" (Openwashing, Marketing, Conniving)
Generally speaking, freedom-loving geeks learn to reject morbid elements and trolls, who end up expelled
Growing Poverty Rates in the United States of America (or Elsewhere) Beneficial to GNU/Linux Adoption
Toxic politics around the world, including the US, may mean weaker economies
 
Links 26/03/2025: Media's Failures, Arrests of Journalists, Limitations of End-to-End Encryption
Links for the day
Novell and Microsoft Apologist/Booster Bruce Byfield Writing About the FSF is a Recipe for Problems
Totally not shoehorning some agenda
Looking Forward to the Fall of UPC and Revocation of the Unified Patent Court (UPC) Agreement, Which Was Always Illegal and Unconstitutional
We'll try to keep abreast of any progress in this case
Slopwatch: Google News, LinuxSecurity.com, and the General Demise of the Web
many supposed or so-called "news" pages are just spewed out by some chatbots (or tools which help plagiarise original articles without getting caught; detection gets harder)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 25, 2025
IRC logs for Tuesday, March 25, 2025
Links 25/03/2025: Terrace Workbench and Spellcheck in LibreOffice on FreeBSD
Links for the day
The Open Source Initiative (OSI) Might Get 'Forked' Soon
Someone who read our series has already taken a leading role
IBM Layoffs in the United Kingdom (UK) in 2025
Should Free software people trust such a secretive company?
Roku Will 'Lead' Attempts to Abolish the Illegal and Unconstitutional Unified Patent Court (UPC), Which Represents EPO Corruption and Lobbyism Spreading Upwards Inside the EU
When bribery buys policies and courts, even illegal policies and courts
European Patent Office (EPO) Illegally Turning to Slop Behind Closed Doors, Staff Objects to This Hidden Catastrophe
Who stands to gain from all this and at whose expense?
Gemini Links 25/03/2025: Relaxation, Literary "Movements", and Gemini Mentions
Links for the day
After US Government Funding Cuts the Centralisation of the Web (Especially Certificate Authority Let's Encrypt) is at Risk
They try to pull the plug on open protocols with decent encryption available (unless it is outsourced to third parties)
Links 25/03/2025: Putin Sends Children to Battle, 23andMe Drowns as People's Highly Personal DNA Data Floats
Links for the day
When Microsoft Folks Who Literally Strangle Women Try to Strangle Microsoft Critics
Speaking to Court staff yesterday, they too are shocked about those SLAPPs
Martinique: Windows Down to All-Time Low
we cannot expect Windows to ever recover
Anticipated in 2018: Lilie James & Location tracking, Googlists complained
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 24, 2025
IRC logs for Monday, March 24, 2025
IBM (and Red Hat) on a Fast Train to Nowhere
What is the future of Fedora when IBM keeps removing its leadership?
Press Reports Say Almost 10,000 Western IBMers Laid Off
We've been trying to verify/corroborate this somehow
Gemini Links 24/03/2025: "Live Off the Land" and Life Without YouTube
Links for the day
Planet Ubuntu (or Ubuntu Planet) is LLM Slop
Reading chatbots' output is bad use of time
Days Ago yewtu.be Found a Workaround That Made Invidious Work Again. Then Google Broke All the Instances (Again).
"Youtube changed something again, so if a video does not play, it's because of that."
The European Patent Office (EPO) is Slowly Killing Its Own Staff; All It Cares About Is Money
The Office hasn't been run by a scientist for about 18 years already
Links 24/03/2025: US Detaining Innocent People, F-35 Contracts Suspended Due to Hostilities
Links for the day
Cellphones (Mobile Phones) in Classrooms
A recent study confirmed that people's intelligence has dropped in recent years/decades
Is the FSF Being 'Trolled' by Microsofters Pushing C# (Microsoft)?
Who stands to benefit from training people to use and spread Microsoft?
Matthew J. Garrett is "Former Microsoft Researcher", According to Microsoft's Serial Strangler
Their argument is something along the lines of, "what Roy published damaged my career prospects, so I want Roy to pay me...
Links 24/03/2025: Political Catchup and Environmental Concerns
Links for the day
Windows Has Now Fallen to Rather Ridiculous 3% "Market Share" in Iraq (Windows Was Measured at 100% Back in 2010)
Iraq is not a place where Windows can make a comeback
Gemini Links 24/03/2025: Working With Music and Unconscious Influence
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 23, 2025
IRC logs for Sunday, March 23, 2025