I have never come across anything quite like this. Right in the middle of Europe -- in the reputable Bavaria no less! -- there's a sort of Mediterranean 'Mafia' running a 'racket' of sorts...
How was this allowed to happen? Why is nobody putting an end to it?
"How was this allowed to happen? Why is nobody putting an end to it?"Well, behind the smokescreen of EPO-funded fluff* there's something rather horrific and sinister going on. I, as a longtime proponent of the EU, am horrified to see the EU becoming an extender of EPO corruption. They don't care about the law and about facts, let alone constitutions. Corruption and illegalities rage on. Having added an update to our previous post about this (with Bristows jumping in, parroting Breton), I now see Myles Jelf (Bristows) jumping in to say:
As well as the issue of the UPC’s central division, other concerns were expressed about the unitary patent and UPC system going ahead without the UK, including:
- the system will be less attractive without coverage of the UK;
- the UPC procedure includes clear features of English legal procedure, yet the only participating country with a similar procedure will be Ireland;
- the expertise of UK judges will not be available, and UK lawyers will not be able to participate;
- English still being the main language; and
- the financial implications for the remaining participating countries.
"It's going to completely discredit the German government while quite likely having zero effect on the death of the UPC."Jan Van Hoey said: "Time for Boris to pull the plug and send its notification to the secretariat of the Council of the EU. That’s what Mr Tillman was suggesting in its previous interview. It is also strange to consider agreements not into force part of “Union law”..."
Benjamin Henrion has been saying something similar (it's in our IRC logs).
MaxDrei then wrote: "Talk about deja vu. In the UK, in the run up to BREXIT, HMG flying on auto-pilot, deposited its instrument of accession to the UPCA. Now, the EU Commission, another craft flying on auto-pilot, happily announces that it would “welcome” ratification of the UPCA by Germany. Sometimes the ship, sailing on its pre-set course, is so enormous that it takes years to change course. Somebody on the bridge has first to issue an authoritative command. Those underlings who are responsible for Press Releases have no authority to do anything else but state what course the ocean-going liner is proceeding along."
"Concerned observer" is the latest to weigh in:
Well, the only way to describe that response is that is uses carefully selected language to make statements that, whilst not strictly untrue, are highly misleading.
Most misleading of all is the statement that “participation in that system, including the Unified Patent Court Agreement, is only open to EU Member States”. The trouble with this is that termination the UK’s membership of the EU does NOT automatically terminate the UK’s participation in the UPC Agreement. Whilst Mr Tilmann has (rather dubiously, in my opinion) suggested that a notification from the UK would serve to terminate its participation in the UPCA, not even he has suggested any plausible mechanism under the Vienna Convention for AUTOMATIC termination of the UK’s participation at the end of the transitional period.
There has certainly not been any “notification” from the UK to the other Participating Member States of the UPCA. Thus, the problem with the UPCA remains that the UK will be (and, arguably, already is) a “third country” under EU law. In this sense, Mr Breton’s response simply does not address the legal issue underlying Mr Breyer’s question. Whilst extremely disappointing, this is hardly surprising … given the level of “political” support for the UPCA at the EU level.
It remains to be seen whether national courts (such as the BVerfG) will be persuaded by such misleading responses. In my experience, courts tend not to be so easily misled. Also, given that Germany is proposing to ratify the UPCA by relying upon arguments that happen to work very nicely for their legal profession (by effectively dividing between Munich and Paris cases that would have gone to London), it remains to be seen whether the other Participating Member States (such as Italy) can be persuaded that this is acceptable. Whilst various carrots and sticks will no doubt be deployed, I doubt that it will be so easy to persuade all of the PMSs.
Finally, I have my doubts about Jan’s suggestion that the UK should formally withdraw from the UPCA. Recent years have seen many highly dubious (and sometimes contradictory) legal theories wheeled out to keep the UPCA “alive”. In this respect, I have no doubt that Mr Tilmann would find some way of arguing the UK’s formal withdrawal would not prevent the UPCA from coming into force. No doubt he would also concoct some arguments for salvaging the associated Protocols (on Provisional Application and Privileges and Immunities), regardless of the fact that those explicitly call for ratification by the UK…
"With Benoît Battistelli's buddy speaking for the EU/EC, it's bound to become a total embarrassment."A scholar has written to us about this, seeking to participate by expressing concerns about the campaign of Team UPC.
"Hi Roy," said the message, noting "that the matter is urgent as many sources confirm that Germany can ratify UPCA and they will try to push it through rather than risk a renegotiation."
Regarding getting people involved in this: "In the constitutional law quarters, academics are more independent and open minded, especially those specialising in human rights, but they do not understand patent law at all.
"A lot of it can be traced back to the EPO and failure to regulate the EPO (or have effective oversight) basically dooms many institutions around it, including ILO.""There is a recent feedback initiative from the Commission on the future of IP. [...] As things stand at present, the matter is a bit urgent and if Germany does not manage to have its way, the UPC legislative package must re-open [...] The moment is critical. [...] we need to get politicians to re-open the negotiations on the UPC and UPCA. [...] at the same time, we need to get politicians to re-open the negotiations on the UPC and UPCA."
Keep an eye on this space. There might be further formal action quite soon. We cannot specify the details just yet, but Team UPC is vaguely aware. It's truly a shame that all this corruption has touched the German government and the EU; the aftermath or the consequence will simply erode public confidence in these institutions. A lot of it can be traced back to the EPO and failure to regulate the EPO (or have effective oversight) basically dooms many institutions around it, including ILO. ⬆
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* The latest nonsense comes from Watchtroll ("IPWatchdog"), e.g. "'Not a Field of Giants': Trends in 3D Printing Tech Include Key Contributions from US," and Machinery that bases its 'reporting' on "European intellectual property firm, Withers & Rogers." It's an EPO parrot; to quote: "Highlighting the UK’s position as a European hub for innovation in 3D printing, the report revealed the city of Derby at number seven in a ranking of 15 major European innovation centres for AM technologies, with Munich, Barcelona and Zurich taking the top positions." They're reusing these talking points, extracted from the EPO's own 'script'. Real journalism is dead/dying.