THE European Patent Office (EPO) has said absolutely nothing -- not even a tweet -- about the latest setback for Battistelli. We mentioned it the following morning. António Campinos also vanished. Nowhere can he be seen except with the mistress of Battistelli's bulldog. A few days ago they were promoting software patents in Europe under the guise of "IP" in games, more or less coinciding with the news from London.
"This cynicism escapes the ego of the litigation 'industry'; they don't really care about innovation or even our economy."This is by no means an attempt to brag. What we have at stake here isn't bragging rights but the future of software development. As my online friend put it, regarding the death of the UPC: "It's pretty good new for the software industry. We have to defeat this third attempt to validate software patents in Europe, and feed the trolls that steal our jobs."
Think of the poor lawyers is what I told him sarcastically. This cynicism escapes the ego of the litigation 'industry'; they don't really care about innovation or even our economy.
As we promised a few days ago, we have been seaming or connecting together pieces of information (and disinformation) about this latest development, which historians may consider to be the moment the UPC "officially" died (another milestone was the constitutional complaint in Germany back in 2017).
The EPO isn't saying a single word about it, but litigation maximalist Rich Pinckney (Bristows LLP) wrote: "The UPC project has suffered its fair share of twists and turns and changes of circumstances. However, this is undoubtedly a blow to the project. The UK is a key participant and the whole project has been framed around the UK’s participation."
"The EPO isn't saying a single word about it..."He's a patent litigation person. From his own bio: "Richard specialises in contentious intellectual property matters with a particular emphasis on patent litigation in the telecommunications, engineering and electronics sectors."
So UPC suits him. He's a legal 'parasite' as some of us might put it or label him...
Watch him promoting the typical glimmer of 'hope':
It remains to be seen what will happen next. As matters stand the UK has ratified the UPC Agreement but its implementation is being held up because Germany has not yet ratified and there is also the German constitutional challenge. Whilst the UK does not intend to participate, the remaining participant Member States will need to consider whether the project remains viable without the UK.
"Words like "what will happen next" are weak denial of the eventuality."It's not being overlooked that they've only cherry-picked comments from Team UPC. As noted here, we have: "Unitary Software Patent project will continue without the UK "Pors believes that the EU and the participating member states are still determined to continue with this project.""
Pors believes...
Maybe you should also ask the Pope about Jesus.
Fake progress was staged also by advertising jobs and preparing what's not legal and not constitutional either (before it's even permitted!); see this photo, which we've copied because it's a cautionary tale.
What a nerve these people have....
"They're vain enough to believe that because (or if) they want something, then it will definitely come about."The arrogance...
They're vain enough to believe that because (or if) they want something, then it will definitely come about.
They think like children.
The UPC(A) is no more, according to the above tweet, for "it has basically ceased to be, it has expired and gone to meet its maker, it’s a stiff, bereft of life..."
The biased article from WIPR was cited by patent maximalists such as Patently-O's Dennis Crouch, who wrote:
The Unified Patent Court was a nice idea. Enforce your European patent with one single patent infringement lawsuit rather than going nation-by-nation. The UK was an integral UPC member — although always with some trepidation about handing power over to a continental court to decide issues of the UK marketplace. The British Exit (BREXIT) from European Union (EU) raised some concerns regarding the ongoing viability of the UPC. However, UK leaders repeatedly indicated that they would continue participating in the Unified Patent Court. That resolution has now changed — the UK government has now announced that the UK will no longer participate in the court or its creation.
"We don't want our article to become a 'wall of tweets', but let's just say that the clear consensus is that UPC is now dead."WIPR was mentioned by Luke Maunder on Twitter. "Well," he wrote, "it will be interesting to see where the #UPC goes from here..."
Goes?
It's finished.
Sure, they might start something else and attempt that other "something" (whatever they call it this time around). But it would not be "UPC" -- not the same thing anyway.
Law Gazette's Michael Cross published an article entitled "Downing St deals death blow to UK role in euro patent court". Well, actually he did not. The headline used to be "Government finally kills UK role in euro patent court" (we assume the editor amended it to suit their stakeholders, the litigation 'industry').
"Sure, they might start something else and attempt that other "something" (whatever they call it this time around). But it would not be "UPC" -- not the same thing anyway.""Law Gazette" is owned by law firms, so the name may be so generic that it's misleading.
The article says: "Under the previous government the UK Intellectual Property Office (IPO) had held the line that as the court will not be an EU institution participation would not be affected by Brexit. However the 2013 intergovernmental agreement which created the court provides for appeals involving aspects of European law to be referred to the European Court of Justice for resolution. Downing Street has now decided that is incompatible with the government's determination to escape European jurisdiction. 'Participating in a court that applies EU law and bound by the CJEU is clearly inconsistent with our objective of becoming an independent self-governing nation,’ a spokesperson said."
Notice how these publications never ever speak to even one opponent of the UPC. We're supposed to think that no such 'monster' exists.
Here's more from the same article: "Burnett-Hall said that the future of the institution could now be in doubt. 'It will be very interesting to see what happens in the European Union and whether the unitary patent and UPC project will continue to go ahead without the UK - but even if it does it will almost certainly now be less appealing for businesses,' he said."
"Notice how these publications never ever speak to even one opponent of the UPC. We're supposed to think that no such 'monster' exists."Max Walters, a longtime tracker of these issues (and to his credit, he understands the subject and covered it in Law Gazette for years), published "Confirmed: UK to shun unitary patent and UPC" (in MIP).
In Twitter he said: "The big (but not surprising) news from last night. UK confirms it will NOT participate in UPC. Article free to view, and includes links to some of our recent (and not so recent) UPC coverage so you lucky people can read all about the never-ending saga..."
From the article:
The UK will not participate in the proposed Unified Patent Court and unitary patent system, a spokesperson for the prime minister has confirmed.
In a statement last night, February 27, a spokesperson for 10 Downing Street said: “The UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and is bound by the CJEU is clearly inconsistent with our objective of becoming an independent self-governing nation.”
The government’s confirmation ends speculation over whether the UK could have participated in the system post-Brexit.
The government’s line was previously that the UPC was “not an EU institution” and that the UK would play a part in the system.
In fact, just five months ago, Tim Moss, chief executive of the UKIPO, told Managing IP: “We believe the UK can continue to play a full role after Brexit and intend to explore continued participation in the unitary patent system and the UPC with our European partners.”
[...]
Should the UPC come into being, a key question will be whether it is still an attractive proposition without the UK. A survey of in-house counsel conducted by Managing IP last year suggested it would be.
"Early on Saturday morning "Kluwer Patent blogger" was 'asking' (mega-phoning) Team UPC (e.g. Mooney) if the UPC is good in order to craft a bunch of ridiculous 'unitary' patents propaganda."This MIP 'survey' about UPC is akin to a Linux news site doing a survey among readers to ask, "which is better, Linux or something else?"
Early on Saturday morning "Kluwer Patent blogger" was 'asking' (mega-phoning) Team UPC (e.g. Mooney) if the UPC is good in order to craft a bunch of ridiculous 'unitary' patents propaganda. Thankfully, however, it didn't take long for readers to strike back in the comments (only hours later). To quote one little bit of this 'prank' post:
On the phone in London, Mooney tells Kluwer IP Law he is “incredibly disappointed that the UP and UPC, which has been worked on for 12 years with great enthusiasm, which has been a lot of work and a very bumpy ride”, will not be implemented in the UK. “It is especially disappointing because all of the European industry, all legal professionals and – until yesterday – also the UK government, were in favour of the Unitary Patent system.”
"Well, as usual, one needs to first read the comments, which are sobering and outside Kluwer's control (bar censorship, which happens on occasions, especially to eliminate anti-UPC voices).""The BREXIT crowd doesn’t see it, or accept it, but the UK, within the EU, had an incredibly powerful role, mediating between Germany and France, never more prominent and crucial than in the field of law-making. All now thrown away, like so many other good things, and so much soft power, by the selfish, greedy and anti-social people driving BREXIT."
Here's another: "As far as I understand the legal situation, is there at all a possibility for the German government to stop the UPC?The parliament has agreed with the UPC and in case the constitutional court agrees with the UPC and the way of the parliament approval, the UPC agreement only requires the signature of the Federal President which is a mere formality?"
There are many more comments there and here (a separate thread).
Notice the consensus. UPC is kaput.
"Notice the consensus. UPC is kaput."It's very hard to keep track of many so-called 'tweets', but the tune in them is pretty much the same. We've going to highlight a few, which were mostly collected by Benjamin Henrion (FFII). He spoke a lot about the 2/3 majority -- a subject on which he said: "Transfer of sovereignty had a 2/3 requirement for the Unitary Patent Court in Germany, there is a pending Const complaint on this by Stjerna. We might be in the same configuration here with transfer of sovereignty to an ISDS court. [...] CETA in NL: anyone has a link about this motion that was voted down to require an approval by the 2/3 majority? Unitary Patent ratification in DE/NL/BE seems to suffer from the same problem, as mentioned in Stjerna's complaint [...] Similar to the Stjerna's complaint, Dutch parliament should also had to ratify the UPC with a 2/3 majority, which they did not. They claimed to be compatible with the Grondwet, which is obviously not the case [...] CETA/ISDS courts and UPC shares the same problems, as they create parallel justice systems. UPC Stjerna's complaint in DE says the vote should have been on a 2/3 majority, I see that you are saying the same here https://www.tweedekamer.nl/kamerstukken/plenaire_verslagen/kamer_in_het_kort/kamer-debatteert-over-goedkeuring-van-het-ceta … any link to the motion? [..., ...] UPC's PPI: "What is particularly striking is that the UK is ***specifically named*** in Article 18.1 of the PPI." Any member state which signs the PPI is making an international deal with the UK https://www.dehns.com/site/upc/upcnews/Does_PPI_spell_more_trouble_for_the_post_Brexit_UPC [...] Belgium has signed an international agreement (PPI for the UPC) with the UK just 2 days before Brexit. UK is even mentioned literally on art 18.1 [...] Any country ratifying the PPI (UPC part4, protocol of privileges and immunities) after 31st January might expose itself to constitutional lawsuits, by making deal with the UK and violating AETR... [...] UK does not want to participate in UPC anymore, it crosses the no-CJEU redline..."
All these critical issues have long been there, but Team UPC tried to bury them under a rug. They hoped to just bypass the national laws. But they failed. Here we have the loudest pro-software patents law firm referring to software as "CI inventions" (when they say "CI inventions" they just mean "coding" or "programming").
"All these critical issues have long been there, but Team UPC tried to bury them under a rug."They're not in a good place right now. Many of the patents they advocate aren't accepted by courts and this won't change any time soon. UPC collapsed. We have said all along that it would collapse and promises were ill-conceived (this article did not age well at all, did it?).
A lot of legal advice people find online is now patently wrong. In fact, only says ago Neal, Gerber & Eisenberg LLP (Lee Eulgen and Abigail Flores) published yet another misleading article that said:
The European Patent Office (“EPO”) is independent of the EU, and therefore existing European patents covering the UK will continue to be enforceable in the UK. In addition, European patent applications that designate the UK may continue to be filed, and granted European patent applications can continue to be validated in the UK. Unlike trademark attorneys, it is clear that UK-based European patent attorneys will continue to be able to represent their clients before the EPO. What remains unclear, however, is whether the UK will be able to participate in the highly anticipated European unitary patent system (creating a single enforceable European patent) and/or the Unified Patent Court (whose rulings would be applicable in all participating countries).
"There's plenty of similar misinformation out there, with sites like Lexology and their tentacles like IAM and World Trademark Review acting as the platform.""Beside the complaint against the UPC, there are no less than four complaints about the independence of the Boards of Appeal of the EPO before the FCC," Henrion quoted here from IP Kat comments.
We saw not even one comment in IP Kat that's optimistic about UPC. Not even one.
Anonymous wrote: "The Brexit nightmare strikes close to home! If the UPC goes ahead without the UK, surely London's significance as a centre for patent litigation will suffer, if it does not, status quo ante bellum is probably the best we can hope for, with a slow decline in relevance more likely."
Well, only those British lawyers would suffer. The rest of us are happy.
Anonymous (maybe another one) said:
Final sentence of penultimate paragraph:
"And, consequently, the UK Government has briefed that it will not seek to remain a part of the UPC system (although we do not expect a formal announcement)."
Talk about burying the lede!
"Well, only those British lawyers would suffer. The rest of us are happy."Sobbing lawyers. Now they complain that they don't control the entire media all the same.
Roufousse T. Fairfly wrote: "The title "UK will not participate in UPC system" suggests that the UPC otherwise still has some sort of future despite its hard-wired UK references. At this point, I feel like playing the famous Monty Python Dead Parrot skit, after performing a global search-and-replace of "parrot" by "UPC". Wannabet that the BVerfG will somehow manage wriggle out from having to take a decision on the merits of UPC related cases by declaring the matter moot?"
Roufousse T. Fairfly separately said: "Fix the corrupt EPO governance while you're at it."
Here's the full comment: "I hadn't seen the other comments before making my own reference to Monty Python. Honest! If and when there will be a new effort towards a unified patent, let it be driven by the EU and national states at the ministerial level, and keep the money-grubbing NPOs out of it. It's about time to ask why these rent-collecting barnacles are still around. Fix the corrupt EPO governance while you're at it."
"MaxDrei" cited CIPA's statement and said: "This is a Link to the website of the Chartered Institute of Patent Attorneys, which lends more authority to the idea that the UK really is backing out of the UPC."
Here's their full statement:
CIPA was informed yesterday (February 27) by a personal telephone call to its President Richard Mair by IPO CEO Tim Moss that the Government will no longer seek to participate in the Unitary Patent or Unified Patent Court system.
Richard Mair said: "This was not entirely unexpected, given the Government’s well-known views on the jurisdiction of the CJEU.
"British companies and SMEs will still be able to use the UPC if and when it comes into operation and, more importantly, the Rights of Audience of British-based European Patent Attorneys are unaffected by the Government’s decision. British companies and SMEs will still have the benefit of British representation by CIPA Fellows when litigating in the UPC."
"Sobbing lawyers. Now they complain that they don't control the entire media all the same.""Anonymous" cited IAM and said: "It seems there has been an explicit rejection of the UP/UPC, not just the implicit one from UK's negotiating objectives."
Many people give credit to IAM 'breaking' the news, but it seems to come from tweets. As Max Walters put it: "Hat tip @Robinson_IP for initial tip off and to @IAM_magazine for getting statement first. [...] My prediction, for what it’s worth, is that the #UPC and unitary patent is now dead. [...] An element of Tubthumping to this of course. CJEU involvement very minor and on niche areas of law. That said, it’s there, and allowing any CJEU influence after government’s recent rhetoric would be madness. [...] Confirmation from No 10 RE #UPC. “UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by CJEU is clearly inconsistent with our objective of becoming an independent self-governing nation.” Altogether not very surprising [...] There a source. The question that intrigues me is why the IPO are seemingly no longer the official spokespeople on this subject."
"UKIPO is not impartial," I responded to him. "An extension of the litigation 'industry' and this is a problem shared among NPOs -- a revolving doors-type conflict..."
"CIPA is grotesque for a number of different reasons."IAM called its article "EXCLUSIVE" (in all caps), "PM’s office confirms to IAM that the UK will not be part of the Unified Patent Court system."
It had already been mentioned online by that time.
Here's their "BREAKING NEWS" that "The UK Prime Minister's Office has confirmed to IAM that the UK will not be participating in the UPC system: "Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.""
Then, on Saturday (yes, the weekend) IAM's Joff Wild bemoaned the possibility that EPC might also lose the UK as member state.
EPO violates the EPC anyway (all the time), so why pretend only the UPC is the issue?
"EPO violates the EPC anyway (all the time), so why pretend only the UPC is the issue?"Wild recalled: "In 2018, Boris Johnson famously declared “F*** business”. Many will say that is exactly what his government did on Thursday when it confirmed to IAM that the UK will not be a party to the Unified Patent Court system."
“Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent, self-governing nation,” they then quote the spokesperson again.
IAM admits that this "decision will have ramifications far beyond the UK. With Germany’s Constitutional Court still to decide on the legality of German accession – and with Spain, Poland and Croatia having decided to remain outside the system – the UPC becoming reality was already in serious doubt."
It's dead, it's finished.
IAM was cited in a large number of tweets like this one or Team UPC badmouth, quoting: "With a decision still to be taken on the legality of [DE‘s] accession bythe country's constitutional court,the ongoing viability of the project is now very much open to question. There will be plenty who believe it should now be abandoned or,at the very least, entirely rethought."
"It's dead, it's finished.""The UPC was never an EU project," Henrion stressed, "law is not EU, parliament is not legislator, court is international, Commission is a mere 'observer', CJEU is not competent to interpret patent law. This project was hijacking the EU all the way. It was a power grab by the patent industry..."
Henrion, who speaks French, has meanwhile picked on CEIPI (Battistelli) making false statements. "EPO cannot create "caselaw"," he explained, "only courts can do. CEIPI: "Quel degré d’harmonisation du droit des brevets en Europe? Jurisprudences France – OEB: convergences et divergences" http://www.ceipi.edu/fileadmin/upload/DUN/CEIPI/Documents/Colloques/Conf_07.05.20_Paris/Programme_draft_7_mai_2020.pdf"
Team UPC would try to tell us that it's not the end.
"The #UPC and the European #patent with unitary effects seem to be as dead as a dodo. Time to start over," one person wrote.
Start what? Who even wants that other than litigation firms and their large foreign clients?
"Team UPC would try to tell us that it's not the end."Henrion responded to claims that "the UPC is not a project that the European Union should drop."
"The UPC is not a project of the EU," he wrote, "it is an international treaty. The Commission is only 'observer', substantive law is not part of EU law."
Going back to IAM, it wrote this: "Now that the UK has confirmed it will not be participating in the UPC, the next question is will the project still go ahead? Back in January, we argued that it should. https://www.iam-media.com/law-policy/upc-saturday-opinion …"
"You speak for your revenue sources," I told them, "i.e. patent trolls and EPO PR firms, litigation firms etc. So your 'opinion' is lobbying, propaganda..."
"Who even wants that other than litigation firms and their large foreign clients?"Deep inside they very well know this.
People who oppose Brexit and made a living out of it tweeted: "This is such an unutterably foolish decision" (once again he shows his complete lack of understanding of what the UPC is and how patents work... or who for)
Whether you oppose or support the UPC ought not depend on your position regarding Brexit. I oppose both Brexit and UPC myself; they're not the same thing.
Watchtroll's writer called it "disappointing news for the Foreign Secretary who signed #upc ratification in April 2018 - a certain @BorisJohnson. At the time the government said “Innovative businesses will benefit significantly from the Unified Patent Court” https://www.gov.uk/government/news/uk-ratifies-the-unified-patent-court-agreement … https://twitter.com/worldipreview/status/1233132423887695880 …"
"When he signed it he did something inappropriate," I responded to him, "as we repeatedly pointed out at the time. It was an "IP Day" PR stunt for him."
Now he just looks rather foolish.
"Whether you oppose or support the UPC ought not depend on your position regarding Brexit. I oppose both Brexit and UPC myself; they're not the same thing."Some people who gave up and stopped fighting the UPC several years ago are finally back to say: "Crystal clear: #UPC and Unitary Patent are just dead [...] #UnitaryPatent and #UPC are officially dead. Expect patent microcosm to play with zombies for a while, no need to pay attention…"
They have been doing this kind of 'necrophilia' for years, not caring about their future credibility/reputation.
Alcohol sales may have been up this past week in the patent microcosm and Team UPC offices. If they cannot delude themselves with words anymore, perhaps booze will do.
Alexander Esslinger wrote on Twitter that "UK does not seek participation in #UPC. In my view, the whole project then does not make sense any longer. https://twitter.com/robinson_ip/status/1233080227489775616 …"
"You guys could say this years ago," I responded. "But too many people played along with the lies until it was professionally 'convenient' to fold the cards..."
"Alcohol sales may have been up this past week in the patent microcosm and Team UPC offices."He cites this tweet: "According to @BIA_UK they have verbal confirmation from @The_IPO that the U.K. will NOT seek participation in the #UPC. Big news. @Ipkat @DrRoseHughes [...] Screenshot with email addresses hastily redacted... pic.twitter.com/xZ5pj4ycgx"
This is where it started. Not IAM. But being liars and charlatans (never trust IAM 'media'; it's like a think tank/lobbying firm), they took credit for everything. The leads don't matter to them. They burn sources, too. ⬆