Bonum Certa Men Certa

Constitutionality and CJEU as Barriers, the UPC Agreement (UPCA) is Already Moot in the United Kingdom

But Team UPC will leap and grab any morsel of hope it can find

Deamworld corporate



Summary: The Unified Patent Court (UPC) isn't going anywhere and the UK merely "explores" what to do about it; for Team UPC, however, this means that the UK "confirms intention to remain in Unitary Patent system after Brexit" (clearly a case of deliberate misinformation)

POOR Team UPC. Nothing goes their way lately. Their 'hero' Battistelli has left the EPO, leaving in charge somewhat of an uncertainty/question mark. Constitutionality challenges (more than one) render the UPC pretty much dead (Team UPC has truly gone bankers over it). This is how media owned by patent law firms (Out-Law.com) covers it this week:



On 29 June, Hungary's Constitutional Court published a ruling in which it held that the terms of the UPC Agreement are incompatible with Hungary's constitutional framework.

The Hungarian court took into account the fact that the UPC Agreement is not formal EU legislation but an international treaty formed through the 'enhanced cooperation' mechanism provided for under the Lisbon Treaty. It permits nine or more EU countries to use the EU's processes and structures to make agreements that bind only those countries. It is through the enhanced cooperation mechanism that plans to develop a new unitary patent and UPC regime have been developed.

The Hungarian court said it would be unconstitutional to allow jurisdiction for resolving private legal disputes to transfer from Hungary's courts to an international institution – the UPC – that is not established within the boundaries of the EU's founding treaties, according to a summary provided by Hungary's Intellectual Property Office.

At least 13 EU countries, including the three with the most European patents in effect in 2012 – Germany, France and the UK, must pass national legislation to ratify the UPC Agreement that the countries behind the new system finalised in 2013.


Hungary's Constitutional Court's decision can only further embolden Germany's FCC to do the same. Irrespective of that, there may be more complaints on the way. It's likely that pretty much every nation that signed/ratified UPCA violated its very own constitution (they never bothered checking). But let's leave all that aside (for now at least), recalling the very recent statement from the British government that it would depart from CJEU, a core part of UPCA. Do they know what they're doing? Evidently not. It's like the typical "Brexit shambles". There is no Unified Patent Court (UPC), there's no Brexit, and there's absolutely no certainty about anything. If the UPC is not constitutional in a number of member states, that further contributes to uncertainty, not to mention what happens in Spain and in Ireland.

Those who follow Team UPC closely enough might have already noticed some "tweets" about a new paper titled "The future relationship between the United Kingdom and the European Union".

"Hungary's Constitutional Court's decision can only further embolden Germany's FCC to do the same.""UK’s white paper on future relationship with the EU includes a reference to maintaining membership of the future EU-wide unitary patent system, but no mention at all on how current EU trademarks and designs will be implemented in UK after Brexit," wrote Robert Harrison about this page.

The text they highlight is very clearly in conflict with other statements, including very recent ones about CJEU. But don't let "bad" facts get in the way of "good" propaganda, right? This is, after all, Team UPC we're talking about. Facts matter not.

Max Walters wrote (with a selective screenshot):

UK's #Brexit white paper confirms intention to stay IN the Unified Patent Court post exit. #patents #UPC


Really? Does the word "confirms" belong here? "They carefully do not mention the CJEU relation here," Benjamin Henrion immediately told him. They're basically just contradicting even themselves.

"The text they highlight is very clearly in conflict with other statements, including very recent ones about CJEU."Some people have spotted that too. "However Luke," one of them said, "big issue with CJEU red line. Wouldn’t be at all surprised for UK to be part of UPC but lose court. Would be huge loss to UK IP..."

UPC is not a "gain" for the UK; it's actually a big loss. It has already wasted time and money; they're assessing something which will never materialise. The person also said: "Yes agreed on the fudge & the position of patents, but the big issue will be when it’s tested in CJEU. Think we may also find Brexiters suddenly ‘finding’ patents when things turn nasty...as they will do. Moot point of course if no deal..."

"UPC is not a "gain" for the UK; it's actually a big loss. It has already wasted time and money; they're assessing something which will never materialise."Managing IP, which participated a great deal in UPC propaganda over the years, said: "The UK government’s new white paper outlines what it wants from intellectual property after it leaves the EU – but some IP professionals feel it doesn’t say enough" (Patrick Wingrove has at least bothered mentioning the critics, noting that the government contradicts itself on this issue).

Here's what a 'front group' of Managing IP wrote:

Observation below. #WhitePaper dealt with geographical indications (EU doesn't mess around with this) and UPC/unitary patent but nothing on trade marks/designs (incl. Union judicial and administrative procedures, e.g. EUIPO). Also see EU's progress report https://ec.europa.eu/commission/sites/beta-political/files/joint_statement.pdf … https://twitter.com/rjharrison000/status/1017390820176035840 …


The obvious issues didn't bother staunch members of Team UPC, who proudly wear a "Team UPC" badge in their tweets (they actually use this term). One of them promoted his own article, titled misleadingly "UK confirms intention to remain in Unitary Patent system after Brexit" (here's that word again, "confirms").

Nothing was confirmed. Going back to Out-Law.com, its headline says that "major hurdles remain" and here's why:

The proposals set out in the paper are worthy of "close consideration" by negotiators, but raise "a series of challenges which will need to be overcome if the deal is to have a chance of being concluded and ratified within the short period of time remaining", according to Brexit and EU law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com.

"Both sides of the negotiations know that the timeline for negotiations is exceptionally tight," he said. "There remains three months until the all-important European Council meeting in October which is officially the end of the EU's negotiating timeline. Major progress needs to be made by then if a deal is to be done and ratified by March 2019."

"If the challenges can be overcome, a deal may be possible. However, given the scale of the hurdles, businesses should consider that a 'no-deal' scenario remains a distinct possibility and should prepare accordingly," he said.


UPC is not possible (in the UK or anywhere else) for many reasons, among which UPC being unconstitutional and Brexit incompatible.

Different wordings (not "confirms") were used by other publishers, e.g. "will explore" and "to explore". There are several headlines to that effect, e.g. "UK will explore staying in the UPC post-Brexit" and "UK to explore Unified Patent Court options in Brexit negotiations [1, 2].

"Even Kluwer didn't say "confirms"; people who use this word seem rather self-deluding at this point.""Kluwer Patent blogger" (typically Bristows) said that the "UK intends to stay in the Unitary Patent system post-Brexit" (their headline).

Even Kluwer didn't say "confirms"; people who use this word seem rather self-deluding at this point.

As for the Bristows-dominated IP Kat, it was covered there not by Bristows but by Eibhlin Vardy, who quoted the relevant passages (highlights are ours):

150. There is a long history of European cooperation on patents, which can be costly to enforce in multiple jurisdictions. Most recently, this includes the agreement on a Unified Patent Court to provide businesses with a streamlined process for enforcing patents through a single court, rather than through multiple courts.

151. The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.

152. Arrangements on future cooperation on IP would provide important protections for right holders, giving them a confident and secure basis from which to operate in and between the UK and the EU.


So they actually use the word "explore"; there's no confirmation there at all. They rightly take note of the EPO's role, obviously overlooking all the scandals (including judicial scandals) that take place there.

"They rightly take note of the EPO's role, obviously overlooking all the scandals (including judicial scandals) that take place there."All in all, the "tl;dr" version of this "UK government White Paper" (on UPC at least): we don't know if we can participate in UPC, but we're checking what we be done. Anything beyond that would be pure spin or an 'artistic' interpretation.

Recent Techrights' Posts

Censorship as Signal of Opportunity for Reform
It remains sad and ironic that Wikileaks outsourced so much of its official communications to Twitter (now X)
The World Wide Web Has Been Rotting for Years (Quality, Accuracy, and Depth Consistently Decreasing)
In the past people said that the Web had both "good" and "bad" and that the good outweighed the bad
Comoros: Windows Plunges to Record Low of About 6% in Country of a Million People (in 2010 Windows Was 100%)
Many of these people earn a few dollars a day; they don't care for Microsoft's "Hey Hi PC" hype
The Mail (MX) Server Survey for July 2024 Shows Microsoft Collapsing to Only 689 Servers or 0.17% of the Whole (It Used to be About 25%)
Microsoft became so insignificant and the most astounding thing is how the media deliberate ignores it or refuses to cover it
Windows Down From 98.5% to 22.9% in Hungary
Android is up because more people buy smaller mobile devices than laptops
Backlash and Negative Press After Microsoft Tells Diversity, Equity, and Inclusion (DEI) People to DIE
Follow-up stories
Microsoft Windows in Algeria: From 100% to Less Than 15%
Notice that not too long ago Windows was measured at 100%. Now? Not even 15%.
Microsoft Windows "Market Share" in New Zealand Plunges to 25%
Android rising
SUSE Goes Aryan: You May Not Use the Germanic Brand Anymore (It's Monopolised by the Corporation)
Worse than grammar Nazis
Gratis But Not Free as in Freedom: How Let's Encrypt is Dying in Geminispace
Let's Encrypt is somewhat of a dying breed where the misguided CA model is shunned
Bing Was at 2.6% in Russia When LLM Hype Started. Now It's Down to 0.8% (for 3 Months in a Row Already)
The sharp fall of Bing may mean that exiting the Russian market won't matter to anybody
 
Links 17/07/2024: School Budget Meltdown and Modern Cars as Tracking Nightmares
Links for the day
This Should Certainly be Illegal, But the Person Who Helped Microsoft Do This is Still Attacking the Critics of It
perhaps time for an "I told you so post"
[Meme] A Computer With an Extra Key on the Keyboard Isn't Everyone's Priority
(so your telling me meme)
Africa as an Important Reminder That Eradicating Microsoft Doesn't Go Far Enough
Ideally, if our top goal is bigger than "get rid of Microsoft", we need to teach people to choose and use devices that obey them, not GAFAM
Billions of Computers Run Linux and Many Use Debian (or a Derivative of It)
many devices never get updated or even communicate with the Net, so exhaustive tallies are infeasible
[Meme] Microsoft is Firing
Don't worry, Microsoft will have some new vapourware coming soon
More DEI (or Similar) Layoffs on the Way, According to Microsoft Team Leader
What happened shortly before Independence Day wasn't the end of it, apparently
[Meme] Many Volunteers Now Realise the "Open" in "OpenSUSE" or "openSUSE" Was Labour-Mining
Back to coding, packaging and testing, slaves
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 16, 2024
IRC logs for Tuesday, July 16, 2024
[Meme] Ein Factory
A choice between "masters" (or "master race") is a false choice that results in mass exploitation and ultimately eradication (when there's little left to exploit)
Links 17/07/2024: Open Source Initiative Lies and Dark Net Thoughts
Links for the day
Media Distorting Truth to Promote Ignorance
online media is rapidly collapsing
Android Rises to New Highs of Almost 80% in Cameroon
How many dozens of nations will see Windows at under 10% this coming winter?
Links 16/07/2024: TikTok Ban in Europe and Yandex Split
Links for the day
Gemini Links 16/07/2024: On Packrafting and on Trump Shot
Links for the day
[Meme] Firefox Users Who Think They Know Better Than Mozilla
Enjoy Firebook
Firefox Used to Have About Half the Market in Switzerland, But It Doesn't Stand a Chance Anymore (Chrome Surging This Summer)
Mozilla has managed to alienate some of the biggest fans of Firefox
Microsoft's Biggest Losses Are in Europe This Summer
Microsoft's ability to milk a relatively rich Europe is fast diminishing
How to Make Software Suck and Discriminate Against People at the Same Time
ageism glorified
[Meme] Microsoft Seems to be Failing to Comply With WARN Act (by Refusing to Announce Mass Layoffs as They Happen)
since when does Microsoft obey the law anyway?
Microsoft Layoffs Are Still Too Frequent to Keep Abreast of and Properly (or Exhaustively) Classify
The "HR" department knows what's happening, but whistleblowers from there are rare
Bahamas Joined the "5% Windows" Club
statCounter only traces back about 1 in 20 Web requests to Windows
Links 16/07/2024: Salesforce Layoffs and Microsoft's DMARC Fail
Links for the day
Antenna Abuse and Gemini Abuse (Self-hosting Perils)
Perhaps all this junk is a sign of Gemini growing up
Possibly Worse Than Bribes: US Politicians and Lawmakers Who Are Microsoft Shareholders
They will keep bailing out Microsoft to bail themselves out
The Software Freedom Conservancy Folks Don't Even Believe in Free Speech and They Act As Imposters (Also in the Trademark Arena/Sense)
Software Freedom Conservancy was already establishing a reputation for itself as a G(I)AFAM censor/gatekeeper
Djibouti Enters the Windows "10% Club" (Windows Was 99% in 2010)
In Africa in general Microsoft lost control
GNU/Linux Share Doubled in the United States of America (USA) in the Past 12 Months
Or so says statCounter
Even in North Korea (Democratic People's Republic Of Korea) Google Said to Dominate, Microsoft Around 1%
Google at 93.26%
[Meme] The Red Bait (Embrace... Extinguish)
They set centos on fire, then offer a (de facto) proprietary substitute for a fee
Shooting the Messenger to Spite the Message
segment of a Noam Chomsky talk
[Video] Boston Area Assange Defense (Yesterday)
It was published only hours ago
Guinea: Windows Down From 99.3% to 2.7% 'Market Share'
Guinea is not a small country
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 15, 2024
IRC logs for Monday, July 15, 2024
What's Meant by "Antenna Abuse" (Gemini)
syndication is not a monopoly in Gemini and if one doesn't condone political censorship, then one can create one's own syndication service/capsule
Microsoft Layoffs and Entire Unit Termination: Diversity, Equity, and Inclusion
What an announcement to make just before Independence Day
Links 16/07/2024: Old Computer Challenge and One Page Dungeon Contest
Links for the day
Microsoft Falls Further and Closer Towards 10% (Windows "Market Share") in Kuwait
more countries entering the "single-digit Windows" (under 10%) club
Gemini Links 15/07/2024: Antenna's Pro-Hamas Bias Revisited and Old Computer Challenge
Links for the day
[Video] Julian Assange, Over One Decade Ago, Cautioning About What the Internet Had Truly Become
video is not new
Homage to Malta
Malta is probably easy for Microsoft to bribe
IRC at 16
Logging has been used for us and against us
In Malta, Android/Linux Has Overtaken Microsoft Windows (According to statCounter)
statCounter milestone?
Links 15/07/2024: China’s Economic Problems, Boeing Under Fire
Links for the day
500 Days' Uptime Very Soon
Good luck doing that with Windows...
Windows Falls Below 20% in Tunisia
A month ago we wrote about GNU/Linux in Tunisia
Links 15/07/2024: Google Wants Wiz and Why "Sports Ruin Everything"
Links for the day
Gemini Links 15/07/2024: Old Computer Challenge and Sending Files via NNCP
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 14, 2024
IRC logs for Sunday, July 14, 2024