Bonum Certa Men Certa

The Fall of the UPC - Part V: Pretending That Opponents of the Unitary Patent Simply Don't Exist

Even if that works against 99% of the people out there

Kluwer Patent Blog
Kluwer Patent Blog right now. Where are UPC critics? 4 articles in 3 days, but only from lawyers/attorneys.



Summary: It's difficult if not totally impossible to find articles from impartial journalists -- let alone from actual scientists -- about the failure of the Unitary Patent and UPC Agreement (UPCA)

WE have long complained about bias in media which covers patents, especially UPC matters. It's all captured. It's not even media but self-serving lobbying disguised as information.



Enter Kluwer Patent Blog.

Classic.

Stay classy, Kluwer Patent Blog...

Who runs Kluwer Patent Blog? Look at the sidebar.

Innovators?

"It's a coup. Germany's Justices saw that, but they've put it more politely in their written decision."No, thank you.

Kluwer Litigators Blog would be a suitable blog title.

Nevertheless, there's at least one person at Kluwer Patent Blog who we generally trust. It's Thorsten Bausch (Hoffmann Eitle). Even EPO examiners trust him, for he defended Judge Corcoran and repeatedly criticised EPO management. Here's one EPO insider citing his initial blog post which spoke about the FCC's decision, saying that "this decision also means that at least the FCC will most likely not establish unsurmountable hurdles against the establishment of the UPCA. Negotiations about the future shape of the UPCA can therefore be started or resumed without a further sword of Damocles hanging above the negotiators’ heads."

Notice the first comment from Jan Verbist: "The other deeper legal problems raised by Stjerna were not addressed.

"So the other problems are still there."

Lots more in there. We don't have the time needed to comment on comments or even every single article (there will be lots more in days, weeks if not months to come).

Stjerna and Bausch aren't the only Germans to speak out against the whole UPC 'conspiracy' (remember that Stjerna used to work for one of the most vocal UPC booster). One German (Axel H. Horns‏), citing the decision in German, tweeted: "German Constitutional Court kills #UPC die do formal reasons (Unmatched 2/3 quorum in German Bundestag)"

It's a coup. Germany's Justices saw that, but they've put it more politely in their written decision. This politeness is now being exploited. As noted here, UPC judges: "b) The constitutional identity of the Basic Law was also violated due to the insufficient legal status of the judges. There is no legal basis for their selection and appointment, nor for the authorization to intervene in fundamental rights through judicial activity."

Fellow Germans, such as Alexander Esslinger on Twitter, said that the "German Constitutional Court declares law for accession of Germany of the #UPC unconstitutional..."

"Justices at the FCC show that law can prevail sometimes," I told him, "even if belatedly (years late)..."

He agreed.

Going back to Bausch, last night he published this follow-up. "By now," he says, "the decision by the Federal Constitutional Court (FCC) voiding the German law approving the ratification of the UPC Agreement has gone viral in the patent world, though fortunately not pandemic. Most of the usual suspects have already taken position for one side or the other, so I thought I might likewise throw my five cents in. [...] The decisions of the FCC on the four constitutional complaints relating to insufficient legal protection against decisions of the Boards of Appeal, which is closely related to the question whether the Boards of Appeal are (independent) courts, may now be awaited with even more tension."

Florian Müller, another German, tweeted that the "Federal Constitutional Court nullifies ratification of Unified Patent Court Agreement by German legislature, holds that it amends Basic Law (Germany's de facto constitution) by conferring judicial authority on international body => high quorum => not met."

The current UPC (or UPCA) is dead and future attempts at it probably are too. There are several barriers that haven't yet been looked at and further ones that can be submitted.

Watch the rubbish from JUVE, a German publication that became utter trash in recent years, merely a shameless vehicle of UPC lies and propaganda; as noted here, it said: "The Bundestag can now save the situation by voting on the Act again with a 2/3 majority. Organising a quorum and a two-third majority in the context of Coronavirus will be a major challenge."

Even without it, doing a 'secret' vote at 1:30AM or repeating the same shambolic act with more people present would do nothing to redeem the UPCA from other arguments against it. They focus only on the principal reason for acceptance of the complaint as if the rest do not exist. The Justices didn't even need to look into these. So the other complaints remain and there may be further ones (if necessary). One UPC booster said: "However, whether there is appetite - given the current other pressing issues and impact of Brexit - remains to be seen. There also seems to be room for further attacks, which the Ct did not have to decide upon: https://twitter.com/UPCtracker/status/1240929583433728000?s=20 …"

An "appetite"?

Whose appetite?

"The other complaints might cause more breathing problems to the patent community," Benjamin Henrion noted in response to Axel H. Horns‏. He was ready submit an additional one. And based on very strong grounds.

Let's face it.

The UPC is dead. For at least several more years it won't be progressing in any shape or form. Let's work to fix EPO in the meantime, if possible. There's not much going on, except perhaps the lock-downs, in the meantime. We need to stop Campinos harassing the judges to permit illegal patents and the nepotism too deserves broader attention. German journalists say they won't cover that because of Coronavirus.

As Henrion said: "UPC in Germany: and don't forget the other 4 complaint against the EPO construction not respecting the rule of law, they might cause more breathing problems to the patent establishment..."

It seems rather clear that a lot of Germans who aren't part of the 'conspiracy' aren't happy with the actions of Team UPC. Müller did a whole article about it, noting that "[s]ix years ago, a broad industry coalition warned against the risks of the UPC turning Europe into a trolls' paradise." [via]

He's quoting Team UPC talking points, then adding:

In addition to those reactions to yesterday's ruling, let's not forget that the UPC's Rules of Procedure have previously been--and without a doubt will again be--a subject of debate. Six years ago, a broad industry coalition warned against the risks of the UPC turning Europe into a trolls' paradise.

In that context, access to injunctive relief is the most important issue--as it is in the German patent reform debate. Earlier this week, the Federation of German Industries (BDI)--the largest industry association in Europe--was forced to retract a submission (particularly on injunctive relief) that the Federal Ministry of Justice and Consumer Protection had already published on its website, as the statement misleadingly suggested that large parts of the German economy backed a permissive approach to patent injunctions. This setback for patent enforcement extremists proved that the companies advocating--as did the aforementioned UPC Industry Coalition--a more balanced patent system are ever more influential. There's a strong connection between a future "UPC 2.0" effort and the ongoing process for a reform of Germany's Patent Act: whatever comes out of the national legislative process will inform--if not dictate--the position the German government will have to take when the UPC Agreement is renegotiated. The stakes could hardly be higher, and a growing number of stakeholders are perfectly aware of this while some others are still clueless as to what it takes to influence patent legislation.


Bausch's articles on the matter were OK, almost outnumbered but not outclassed by Team UPC. Thomas Musmann (Rospatt Osten Pross) or Hetti Hilge/Dr. Simon Klopschinski (whichever), for instance, wrote about it (it's in Twitter too, observed by EPO insiders) and there's one piece by "Kluwer Patent blogger" (maybe Bristows again), citing EPLIT, Wouter Pors et al.

So did IP Kat, where Anastasiia Kyrylenko says "Bird & Bird is also closely monitoring major IP conferences and provides you with an updated information on their status."

Notice how Wouter Pors and Bird & Bird sort of vanished in recent years. The UPC complainant, who used to work for them, must know some of their darker secrets. It's worth noting that in so-called 'diverse' posts there are conspicuously missing views and opinions. Nobody among the UPC critics is cited, quoted or even mentioned in Kluwer Patent Blog, a de facto front group of the litigation zealots. 4 articles, all of them from the patent 'industry' and 2 of them from just a megaphone of patent trolls' legal representatives.

"It's worth noting that in so-called 'diverse' posts there are conspicuously missing views and opinions."EPO insiders are seeing these and the corresponding tweet mentions Bausch by name, saying "Mixed reactions to ruling German Federal Constitutional Court in case Unified Patent Court..."

The word "positive" comes from Stolmár & Partner IP, which said: "where does this leave the UPC? Actually, not in a bad position. (…) Of course, with the current corona crisis ongoing, the UPCA won’t be the top priority for some months to come. In addition, one question remains: will the other member states still go forward with the UPC, despite UK having withdrawn from the project? But overall, we take this decision rather positively.”

So they seem to imply the decision is positive... because it's helping the UPC?

Where are the people claiming that UPC is a bad thing? They represent perhaps 99% of Europe's population, yet they're muted.

Recent Techrights' Posts

Ageism in Tech
Your protocol is "old"...
In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
 
Nice Recovery (From Actual Fire) by PCLinuxOS, New Version of PCLinuxOS Released, Now Top of DistoWatch
PCLinuxOS is a community-driven distro
More Microsoft Shutdowns That Mostly Slipped Under the Radar
Remember what happened to books 'sold' by Microsoft?
Microsoft Lunduke Still Fighting Cancel Culture With... Cancel Culture
There will be no "winners" in such 'debates'
The History of Daily Links and Politics
"I support Wayland, but I also support abortion..."
Microsoft is at 0% "Market Share" in Most Areas
Depending on the taxonomy chosen, there may be dozens of categories other than desktops and laptops
"The moment MSFT stock fails to start tumbling, that’s the beginning of another corporate giant going under."
There are far more layoffs at Microsoft than at Intel, but you would not get this impression based on Wall Street media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 19, 2025
IRC logs for Saturday, July 19, 2025
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025
Links 18/07/2025: Peace With PKK and Connie Francis Dies
Links for the day
Gemini Links 18/07/2025: Alhena 5.1.8 and Bornhack 2025
Links for the day
How to Top Up a "Limited Liability" With Even More Limitations (Dodging Accountability in the UK)
Some people call it a "shell game". Sometimes it's done for tax evasion purposes.
Free Software Foundation, Inc. (FSF) Inches Towards 75% of Fund-Raising Target
Will the cutoff date be extended again?
Gemini Space (or Geminispace) Grows, But Usage of Certificate Authority Let's Encrypt Drops Further
Ideally, all Gemini capsules should use self-signed certificates
Links 18/07/2025: More Microsoft Layoffs in Activision, The New Stack (Sponsored by Microsoft) Complains About Openwashing
Links for the day
Gemini Links 18/07/2025: OCC25 Gnus for Reading Usenet and RSS Feeds, Small Web Updates
Links for the day
[Meme] 9AM Meeting at Brett Wilson LLP
Brett Wilson LLP in space
Listing as Staff People Who Left the Company More Than Six Years Earlier
There are apparently no laws against that
Brian Fagioli Shovels Up LLM Slop (Plagiarism) Onto Slashdot, Then Uses Slashdot for Affirmation or as Badge of Honour
Notice how some of his latest slop is presented ("as featured on Slashdot")
Social Control Media Productivity
Snapping photos of the bone
The Law Firm SLAPPing Us For the Microsofters Lost 72% of Its Tangible Assets in the Past Year, According to Its Own Reports
That might help explain why they're willing to tolerate serial stranglers from Microsoft as clients
Slopwatch: LinuxSecurity.com Slopfarm and Slopfarms Propped Up by Google News
"As LLM slop is foisted onto the WWW in place of knowledge and real content, it now gets ingested and processed by other LLMs, creating a sort of ouroboros of crap."
Links 18/07/2025: Weather Events and Health Hazards
Links for the day
Microsoft's All-Time Low in Finland
Microsoft is in a freefall
Security: Shane Wegner & Debian statement of incompetence
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 17, 2025
IRC logs for Thursday, July 17, 2025