Bonum Certa Men Certa

Criticism of Unitary Patent (UPC) Agreement Doomed the UPC and Patent Trolls' Plan -- Along With the Litigation Lobby -- for Unified 'Extortion Vector'

But dark clouds remain due to European Patents (EPs) that are leveraged by patent trolls

The natural wonders



Summary: The Unitary Patent or Unified Patent Court (UPC) was the trolls' weapon against potentially millions of European businesses; but those businesses have woken up to the fact that it was against their interests and European member states such as Spain and Poland now oppose it while Germany halts ratification

TODAY'S EPO works for the litigation 'industry', not for science and technology. Examiners, who are themselves scientists and technologists, are rightly concerned. Will their job merely help trolls blackmail other scientists and technologists? What would happen to Germany if it became all about litigation? As the German Florian Müller told me yesterday: "Trolling with junk patents works best in Germany. With respect to injunctions, worse than the Eastern District of Texas."



The threat of trolls in Europe is a growing threat; even predating anything similar to the UPC, litigation by trolls is soaring, especially in Germany. Some are using EPs, granted by the EPO. As American right groups such as the EFF can tell, patent trolls that only make a living by threatening lawsuits (and sometimes suing) also threaten and sometimes sue their exposers, their critics. I've received some threats (even death threats/death wishes) and the EFF was sued several times. Here is what it wrote a couple of days ago:

EFF to Court: The First Amendment Protects Criticism of Patent Trolls



EFF has submitted an amicus brief [PDF] to the New Hampshire Supreme Court asking it to affirm a lower court ruling that found criticism of a patent owner was not defamatory. The trial judge hearing the case ruled that “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. Our brief explains that both the First Amendment and the common law of defamation support this ruling.

This case began when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a defamation complaint [PDF] in New Hampshire Superior Court. Barcelou claims to have come up with the idea of connecting automated teller machines to the Internet. As the complaint explains, he tried to commercialize this idea but failed. Later, ATL acquired an interest in Barcelou’s patents and began suing banks and credit unions.


Things aren't yet this bad in Europe, but they can only get a lot worse if the EPO continues moving in the same trajectory.

Darts-ip has been mentioned this week in relation to a new partnership. Like similar firms in the US that claim to mitigate/reduce the risk from trolls, Darts-ip gathers information to that effect; they help track patent trolls and earlier this year they produced publications for IP2Innovate (speaking out against UPC on behalf of technology firms). This is their latest move:

Minesoft will partner with Darts-ip to include Darts-ip’s collection of patent and intellectual property litigation data on the PatBase database.

PatBase offers a searchable global database of patents, utility models, and designs. As part of the agreement, direct links from PatBase will lead to detailed disclosures in the Darts-ip Case Law database.

[...]

Eric Sergheraert, legal patent manager at Darts-ip, added: “The combination of PatBase’s exhaustive patent database and Darts-ip’s litigation data provides a unique opportunity for patent professionals to streamline and target their searches.”

“We look forward to providing this double insight for our clients and working with PatBase."


Assuming litigation will grow, Darts-ip expects more 'business'.

The UPC has all along been the promise of a boon for patent trolls in Europe. It's pretty obvious and it's not hard to understand why that might be.

Kluwer Patent Blog was cited by SUEPO today as well as by Team UPC (about Thorsten Bausch), which said (not collectively): "As I have pointed out before, for all practical purposes Art. 87(3) UPCA may be key to the UPC-Brexit conundrum."

FFII's Benjamin Henrion said: "UPC: UK might wish to take up any other topic of reforming patent law (e.g. computer-implemented inventions) to the extent that it is not bound by the EPC..."

Thorsten Bausch basically weighed in on a new paper from Germany, introducing it as follows:

A recent study by two eminent scholars from the Max Planck Institute for Innovation and Competition (MPI) on „The Impact of Brexit on Unitary Patent Protection and its Court“, which is available here, casts significant doubts whether it will be possible for the United Kingdom to stay in the UPC Agreement after the UK has left the European Union.

I know that this is to some extent a “hot potato”, and at least a very political topic in patent circles, where different stakeholders hold quite different views, also on this blog. I will try my best to focus on the arguments raised by Professor Dr. Hanns Ullrich and Dr. Matthias Lamping without fury or favour. Before doing so, a note of caution may be appropriate. This „Research Paper“ actually consists of two studies which, as the authors write in their joint General Introduction, have been undertaken spontaneously and independently to reflect such concerns in the authors’ particular field of expertise. Each of them and even more so the paper as a whole is weighty and voluminous: 182 pages in total. Trying to summarize the work that went into this research paper on a blog like this one will inevitably fail to do justice to the authors and their work. Hence, I apologize in advance for all omissions and simplifications and would encourage the readers to read the original source rather than just relying on this „super-executive summary“.

What is the authors’ core thesis and what are their arguments? The authors state that it would neither be in conformity with the EU Treaties, nor politically desirable from a point of view of retaining the EU’s ability to control the conditions of innovation and its legal protection within the Internal Market, if the UPCA were opened to accession by third countries.

[...]

Whether the UPC will ever come into force or not, and whether or not the UK will then be part of it, remains to be seen. The MPI authors certainly have a point in arguing that uncertainty is not good for the UPC system, and that it would be better to clarify the compatibility of the UPCA with EU Law through the CJEU sooner rather than later. But whatever the outcome of such deliberations, it is good that the patent judges of Europe work together and develop a consistent methodology how to approach their respective cases.


From comments (first comment, there aren't many), noting the difference between litigation (Gordon & Pascoe) and MPI:

It is nice to (finally!) see a report covering the MPI articles reach an IP blog. I believe that it will be very interesting indeed to see what happens next.

Predictably, there have already been attempts by those firmly in the “pro-UPC” camp to dismiss / minimise the significance of the articles. However, to date, this has been done solely by attempting to infer that the MPI authors are somehow lacking in EU law expertise, at least compared to Gordon & Pascoe. In my view, that amounts to nothing more than an unprofessional (and ad hominem) attack upon the credentials of the authors. Frankly, I expected better. Indeed, the whole of the patent profession across Europe DESERVES better. This means addressing the SUBSTANCE of the concerns raised by the authors.

I have to say that I am not going to hold my breath waiting for credible answers to the substantive points raised in the articles. This is not least because one of the main concerns raised relates to Article 267 TFEU. That is precisely the concern that I have repeatedly raised (in this forum and others) over recent years, and to which I have NEVER received a credible answer. No matter how much I would like to be surprised on this point, I do not see a credible answer emerging any time soon … though there will no doubt be a plentiful supply of smoke and mirrors to help the politicians to continue to cling to the belief that there is nothing to worry about.


Blogs like IP Kat have not said a word about it; considering the ties to CIPA, perhaps they just hope nobody will notice what MPI said.

Recent Techrights' Posts

Sheriff of Cork & Debian Edward Brocklesby or Brockelsby Street confusion
Reprinted with permission from Daniel Pocock
Who Is This Backup FOR, the NSA?
As Admfubar put it, "backups for everyone..."
Microsoft's Siege of Libya Coming to an End
One might be tempted to guess the users deleted Windows and installed something else
New Talk by Dr. Richard Stallman Published Two Days Ago By CeSIUM - Centro de Estudantes de Engenharia Informática da Universidade do Minho (Portugal)
The FSF no longer mentions Richard Stallman's talks, but we will
Name the Threats and Threat Actors
Looking back to 2006, there was Novell and gregkh (partly salaried by Microsoft), so these are familiar territories
The "Other" SPLC
You know you're winning the debate when censorship is explored
Microsoft: By Default, Destroy Linux
Here is what the very "polite" Microsoft Boccassi had to say
Perens on a Stick
Remember what Novell did and how few (barely anyone) sided with Novell
Andrew Tanenbaum Gets an Award for His Work on MINIX
ACM one week ago
Twitter's Fall to Irrelevancy in Europe
Musk bought a dud
 
Links 25/06/2024: Julian Assange Freed From Prison, "AI" Bubble Imploding Some More
Links for the day
Three Points About Julian Assange Plea Deal
There is still a secret problem
[Meme] EFF Became a 'Bunch of Pussies' Working for GAFAM (and Sponsored by GAFAM)
It won't protect people, except very rich people's interests
IBM Does Not Care for the Blind (Wayland Harms Accessibility)
What a punch in the gut
Tux Machines Past 20: Still Thriving
Now 20 years and 2 weeks old
[Meme] Microsoft is Coming /Home
"LOL, REAL SORRY!!!"
Gemini Links 25/06/2024: Old Computer Challenge; An Opinionated GNU/Linux Guide
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 24, 2024
IRC logs for Monday, June 24, 2024
IEEE Computer Society on Andrew Tanenbaum, Winner of ACM Award, Who Also Inspired Linux Development
10 years ago
FSF Looking to Raise Money by Adding 200 New Members by July 19
The FSF is in good shape, according to Alexandre Oliva
Not Only Does It Not Add Security... (UEFI as a 'Bug Door')
SecureCore?
Data From Monaco Should Alarm Microsoft
Just how many people are deleting Windows and installing something else this year?
Linux in Central Sahel (Burkina Faso, Mali and Niger)
Vast area, vast number of "Linux users" (if one counts Android as such)
[Meme] Gagging One's Own Staff as a Signal of Corporate Distress
Censorship at Microsoft
Staying the Course
censorship isn't easy against sites that understand ways to resist it
The 'All-Seeing' Microsoft Eye
Microsofters are observing us closely
Links 24/06/2024: Long COVID and "How I Write Blogs"
Links for the day
Allegations That Microsoft is Covering Up Employee Dissatisfaction and Using a Survey to Catch 'Risk' to the Cult Mentality
This favours or gradually socially-engineers a company for sociopathy
'Linux Hint' Inactive for Nearly a Month (It Used to be Very Active)
Their Twitter account hasn't been active for a long time and it's not too clear what's going on
An Unexpected GNU/Linux Trend
Burkina Faso is changing and not just politically
Android (Linux) at New Highs in Burkina Faso, Now Measured at 72% (Windows Was Measured at 98% 15 Years Ago)
based on this month's estimates
With 0.76% for ChromeOS and 3.7% for GNU/Linux (4.5% Total) Burkina Faso Approaches 5% for 'Linux'
More if one counts Android as "Linux"
Gemini Links 24/06/2024: Being Dull and OpenSSH Autoban
Links for the day
EPO Issues in The Hague
a report dated 4 days ago about a meeting that took place 12 days ago
[Meme] Garbage in, Garbage Out (EPO Patent Quality)
"Get back to work"
When the Employer Makes You Too Sick to Go to Work (New EPO Document)
"registering when you are sick"
[Meme] 'Useless' Kids of EPO Examiners
malnourished?
Granting Loads of Monopolies in Europe (to Foreign Corporations of Epic Size and Far Too Much Power Inside Europe) is Vastly More Important Than Raising European Kids Properly?
"Efficiency" first? Whose? Corporations or families? No wonder so many young families are hesitant to have any kids these days; that's particularly true in east Asia and also in north America, not just Europe
[Meme] Putin's Red Flags
Firefox ESR or Firefox USSR
The Corporate/Mainstream Media and Even Social Control Media is Distorting the Record About What Mozilla Actually Did (It Originally Surrendered to Vladimir Putin)
Mozilla being avoided for purely technical reasons (sites not being compatible with it) is one thing. Foolishly, Mozilla is giving people more political reasons to also shun Mozilla. This is suicide.
GNU/Linux Up Some More This Morning, Windows Down Sharply Even in Rich Countries
Microsoft is in trouble in the Muslim world
United Arab Emirates (UAE) Rising... Towards 5% for ChromeOS and GNU/Linux
the latest numbers show it growing from about 0.1% to around 2.4% for GNU/Linux, plus 2.01% for Chromebooks (ChromeOS), i.e. about 5% in total.
Techrights in the Coming Decade: The Free Speech (Online) Angle
Free speech is a fundamental tenet of a free society
Links 24/06/2024: New Research, New Attacks on Justices Sceptical of Patent Maximalists, European Commission for Copyright Maximalists
Links for the day
[Meme] 12 Years a Fedora Volunteer
IBM gives me a 'free' Fedora badge as recognition
IBM Slavery: Not a New Problem
When IBM got rid of Ben Cotton it showed the world how much it valued Fedora
Why They Want to Abolish Master/Slave Terminology (Because This is What They're Turned Free Software Into)
It used to be about community; GAFAM turned that into exploitation and worse
Roy and Rianne's Righteously Royalty-free RSS Reader (R.R.R.R.R.R.) Version 0.2 is Released
They say summer "officially" started some days ago
Torvalds' Number Two Quit Linux a Decade Ago and Has Since Then Earned an Honorary Doctorate
Revisiting Fuzix and Alan Cox
GNU/Linux Reaches All-Time High in Tunisia
Based on statCounter
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 23, 2024
IRC logs for Sunday, June 23, 2024
Edward Brocklesby (ejb) & Debian: Hacking expulsion cover-up in proximity to Oxford and GCHQ
Reprinted with permission from Daniel Pocock
You Know the Microsoft Products Really Suck When...
"Qualcomm and Microsoft go 'beyond the call of duty' to stop independent Copilot+ PC reviews"
IBM and "Regime Change"
Change of regime is not the same as freedom
Microsoft Windows in Nicaragua: From 98% to Less Than 25%
Operating System Market Share Nicaragua
Techrights in the Coming Decade: The Community Angle
Somebody needs to call them out on their BS
Techrights in the Coming Decade: The Software Angle
Gemini Protocol has just turned 5 - i.e. roughly the same age as our Git repositories
Techrights in the Coming Decade: The Patent Angle
Next month marks 10 years since we began covering EPO leaks
Wookey, Intrigeri, Cryptie & Debian pseudonyms beyond Edward Brocklesby
Reprinted with permission from Daniel Pocock
[Meme] Choice Versus Freedom
So When Do I Start Having Freedom? Freedom is choice between the GAFAMs
Digital Liberation of Society at Times of Armed Conflicts and Uncertainty
We have technical contributions, not just written output
Links 23/06/2024: More Microsoft Cancellations, Growing Repression Worldwide
Links for the day
Gemini Links 23/06/2024: The Magician and the Hacker, tmux Tips
Links for the day
Links 23/06/2024: Twitter/X Wants Your Money, Google Reports a Billion DMCA Takedowns in Four Months
Links for the day
Digital Restrictions (Like DRM) Don't Have Brands, We Need to Teach People to Hate the Underlying Restrictions, Not Companies That Typically Come and Go
Conceptually, the hens should fear humans, not the farmer who cages them
Going Above 4% Again
Maybe 4% (or above) by month's end?
[Meme] Debian's 'Cannon Fodder' Economics
Conflicts of interest don't matter
Conviction, jail for Hinduja family, Debian exploitation comparison
Reprinted with permission from Daniel Pocock
According to Microsoft, It's Not a Code of Conduct Violation to Troll Your Victims Whose Files You Are Purging
The group of vandals from Microsoft think it's "funny" (and for a "nominal fee") to troll Microsoft critics
Microsoft Inside Debian is Sabotaging Debian and Its Many Hundreds of Derivatives With SystemD (Microsoft/GitHub Slopware With Catastrophic Bugs is Hardly a New Problem)
What is the moral of the story about The Scorpion and the Frog?
Links 23/06/2024: Hey Hi (AI) Scrapers Gone Very Rogue, Software Patents Squashed at EPO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 22, 2024
IRC logs for Saturday, June 22, 2024
Gemini Links 23/06/2024: LoRaWAN and Gemini Plugin for KOReade
Links for the day