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.

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