Summary: The final part in this multi-part series about UPC, which cannot be implemented in the UK as long as Brexit is on the agenda
IN the previous part we made it more apparent that nothing has changed for prospects of UPC in the UK because the Brexit plan has not been called off and nothing except some words on a Web page can suggest otherwise. To put it bluntly, Lucy (Baroness Neville-Rolfe) is either clueless or delusional. She is blindly saying what CIPA, Battistelli/EPO and few other interest groups urged her to say.
We are still seeing the effects of poor (and EPO-bribed) bits of so-called ‘journalism’ about the UPC. It’s more like churnalism or propaganda and a lot of people are not even realising it. Here is Inovia modifying its own headline to make it even more misleading and make it seem like the UPC has just been authorised by the British government. The UK probably CANNOT ratify the UPC; some words on a Web page — words that contradict everything we know about Brexit — are nothing but an exercise in stupidity, but UPC hopefuls will latch onto anything.
“Ultimatums are no go…”
–Benjamin HenrionAs always, for good/better insight into UPC in post-Brexit times see comments from those who are not in Team UPC and actually truly grok this domain. Here is what IP Watch wrote, actually quoting some sceptics for a change:
The United Kingdom government is preparing to ratify the Unified Patent Court Agreement, it said on 28 November. The move took the patent community by surprise but failed to relieve uncertainty about what will happen when the UK finally Brexits the EU, according to patent attorneys in the UK.
A UPC proponent said that “the alternative would have been to say “no” now or until Feb 2017.”
Or even “never”, although that would come across as undiplomatic. “The alternative would be to say wait until we leave the EU,” Tufty the Cat wrote and he is right. IAM previously said something along these lines as well, before it drank some new Kool-Aid.
“Ultimatums are no go,” Benjamin Henrion said, alluding to supposed deadlines imposed by the EPO.
“My guess,” Tufty the Cat wrote, “is it’s simply a way of buying time because @TheCIPA is afraid of the UK being left out.”
To Hell with CIPA. It is just a front/lobbying group of the rich law firms, and it’s so manipulative that it should come under regulatory laws (like most/all lobbyists). May, whom I personally met and chatted with for a long period of time, clearly doesn’t know what she’s doing here, so she probably parrots what CIPA and some patent lawyers told her to say. Not wise. The nuclear industry wants nuclear tensions and maybe war. It’s the same for patent lawyers regarding the UPC. May should recognise that CIPA is not a friend but more like a Trojan horse trying to shift policy in favour of a very small group that put money in its pot.
“[It] is it’s simply a way of buying time because @TheCIPA is afraid of the UK being left out.”
–Tufty the CatDon’t forget the role of Barnier, either (mentioned in the last part). As one person put it, “I think this is a non-UK politician telling us why UK politicians acted. I have several alternative guesses but not this one.”
Just see his latest UPC lobbying while doing Brexit work. Look at his statements amid Lucy’s and May’s bizarre move. Is he now blatantly interfering in foreign affairs?
Michel Barnier made a career (along with Battistelli) promoting this monster, even back in the days when it wasn’t yet called “UPC”. We wrote a lot about him at the time and here he is writing: “UK will ratify Unified Patent Court Agreement. Clears way to first Unitary patent delivery in 2017. Good for innovating Europe !”
Pardon my French, but BULL-****, Sir. That statement is filled with multiple factual errors, but then again Barnier is a politician. When his mouth/lips move he lies (the same goes for Battistelli, who is also a politician).
Speaking of politicians who lie, see this MIP tweet that reads: “Very good news for European industry & SMEs … entry into force in first part of 2017″ – Commissioner @EBienkowskaEU on #UPC today”
“May should recognise that CIPA is not a friend but more like a Trojan horse trying to shift policy in favour of a very small group that put money in its pot.”This is an utter lie again. It’s consistent with what Bienkowska has been doing for years (we wrote about it when she protected Battistelli's UPC ambitions and belatedly responded to complaints about Battistelli). She is either totally clueless or a liar. We presume the former and we encourage people to explain to her what the UPC really does. SMEs actually oppose the UPC. She was probably lied to by Team UPC, pretending to speak ‘on behalf’ of SMEs (because Team UPC lacks morals, it just has a mission].
Bienkowska spoke again like a drone of Team UPC and MIP quoted her as follows: “We are not speculating about the future” – this is about getting #UPC going after 40 years – @EBienkowskaEU at press conference” (she doesn’t seem to realise what the UPC is, based on such a statement).
The EPO has existed for this long, but the UPC push/ambitions have not, so this is revisionist history.
Writing in response to IPPro Patents, Henrion said that “the only goal is to get it running, who cares what’s next.”
“…the only goal is to get it running, who cares what’s next.”
–Benjamin HenrionThey want reassurance from May and Lucy before those two even check feasibility.
What an embarrassment to our political system.
Dr. Birgit Clark, a German lawyer working in the UK, wrote: “Saying you are continuing with preparations to ratify says “status quo” maintained but not much more?”
It’s nothing but words on some Web page. It is “good for patent trolls,” Henrion wrote, but only if it actually happens at the end (not likely at all).
Here come the liars from the EPO. A UPC hopeful from Germany wrote that “Margot Fröhlinger gives a first hand account how the UK’s intention to ratify came about #brexit #upc #ipsummit pic.twitter.com/ExdxpcT7NZ” (Margot Fröhlinger is Battistelli’s right-hand lobbyist for UPC these days).
Margot Fröhlinger has again been caught in a lie, based on this tweet that says “Fröhlinger: interventions by industry and NGOs brought the #UPC on the political agenda 1/2″
Patent lawyers and multinationals are behind this, not “industry and NGOs” (Henrion even asked “which NGOs?”).
“Saying you are continuing with preparations to ratify says “status quo” maintained but not much more?”
–Dr. Birgit ClarkMargot Fröhlinger — like the Liars in Chief (Battistelli) — should be assumed to be lying all the time. Henrion told me that he believes CIPA is what Fröhlinger called “NGO”. How comical would that be?
The above about Fröhlinger continued with “This raised awareness for the topic and led to U.K. 🇬🇧signifying intention to ratify #UPC🇪🇺2/2″
In this case, “raised awareness” is a euphemism for aggressive lobbying and threats/moral panic by CIPA and Team UPC. Watch some of the patent microcosm commenting on this in the law firms’ Web sites [1, 2]. They’re absolutely delirious!
MIP, which contributed a lot to misinformation about the UPC, wrote that “UK ratification of UPCA – next steps: 1 Privileges & Immunities Orders in Parl (& Scot Parl). Both are affirmative. 2 Privy Council approval” (go on then, jump the gun!)
Managing IP‘s UPC promotion is nothing new and it continues even in the US right now. Earlier today MIP published this report from its own event, “EU Patent Forum USA 2016″ (bringing some EPO agenda to the US, just as IAM did with the EPO’s support). Here are the portions about the UPC:
The UPC looms
“I don’t make predictions anymore,” said Alex Wilson of Powell Gilbert at New York’s forum, as he considered when the UPC and Unitary Patent might come into effect. While the UK’s announcement represented an ascent on the long-running “UPC rollercoaster” there were more dips to come, including the actual ratifications in the UK and Germany, the question of what happens post-Brexit and the appointment of judges.
One of the strategic advantages of the UPC for patentees, said Leonard Werner-Jones of Hoffmann Eitle in New York, is the ability to opt-out existing European patents from the Court’s jurisdiction, and opt them back in (at no cost): “If you play your cards right, you can have the best of both worlds.” Andrew Hirsch of the International IP Institute was clear about the lesson from this: “I would opt out all the time because you can always opt-in.”
In Palo Alto, Bethan Hopewell of Powell Gilbert and Laura Kehoe of Keltie set out the details of the UPC and Unitary Patent respectively, while Kevin Brown of NVIDIA summarised the priorities for industry, including: cost, predictability and flexibility.
The likely impact of the UPC on the IT and TMT industries has been much debated, particularly in the context of whether it will be a heaven for patent trolls or indeed any entity asserting weak or invalid patents for nuisance purposes. In Palo Alto, Will Cook of Marks & Clerk noted that first movers may be able to shape UPC jurisprudence in these fields: “It may be worth a punt to take a case in this court.”
However, as Thomas Prock of Marks & Clerk said, national courts are likely to remain important, given that many patentees in the high-tech sector don’t validate in all countries, and national procedures are well established and predictable, even on issues such as the patentability of software.
In New York, speakers from industry discussed enforcement options. Jonathan Jung of iLuv Creative Technology said decisions “depend on budget and enforcement mechanism”: top priorities are UK and Germany, followed by (depending on the products) France and Spain. Ian MacKinnon of Nortek agreed on the importance of budget, saying: “You work out the cost of your filings, and then your accounts department says do it for 15% less!”
Given the growing difficulty of both obtaining and enforcing IT and TMT patents in the US, speakers compared the merits of protection in Europe, noting that it depends on value-for-money, competitors, timing and making predictions about where both law and technology are going (there was some discussion of the Internet of Things). As Maureen Kinsler of Marks & Clerk said: “It’s probably easier to get a software-related patent in the EPO than in the US now.”
In part 5 we showed new admissions that trolls would be aided by the UPC and here we have the subject brought up again, this time by British/international law firms. Notice that among the topics mentioned above is “patentability of software.” MIP continues to deny that UPC will have an impact on patent scope, conveniently ignoring everything that experts have been saying for years.
MIP is planning yet more of these UPC lobbying events. To quote something that has passed: “The UPC loomsSpeakers at Managing IP’s recent EU Patent Forums in Palo Alto and New York City discussed past, present and future developments for patent owners in Europe, including the UPC and Unitary Patent, FRAND cases, arbitration and the impact of Brexit.”
To quote something that is about to happen, after Managing IP's series of promotional UPC events (with EPO embedded in them), consider this new E-mail from James Nurton, Managing IP‘s lapdog for Battistelli (E-mail sent from address
Fwd: 20+ speakers from European Patent Office, Novartis, Intel and PSA Peugeot Citroen and 60+ delegates confirmed – MIP International Patent Forum 2017
MIP International Patent Forum 2017
March 8 & 9, The Waldorf Hilton Hotel, London
Patent/IP counsel, heads of legal – FREE attendance
Private practice save £300 before Friday, 16 December
Speakers include “Heli Pihlajamaa, director of directorate patents, European Patent Office” and “Principal patent analyst, patent strategy, Microsoft” (lobbyist for software patents).
The Unitary Patent is going nowhere, but as panels are being stacked here we can envision something a whole lot like of “echo chamber” at play. “Patent/IP counsel, heads of legal” enjoy “FREE attendance,” which means the event will get stuffed with patent maximalists. This is how Managing IP ensures it’s just an echo chamber whenever they speak about software patents, UPC, etc. Typical.
The EPO must be very proud of all this work from MIP. Rather than acknowledge that Brexit causes uncertainty for the UPC, MIP reverses it all and says: “Longer term, though, today’s UK announcement on UPC creates uncertainty about what happens post-Brexit & potential renegotiation of UPCA…”
As if Brexit plans will get canned because of some patent lawyers and UPC ambitions. What a ludicrous statement. “Think this is correct,” MIP wrote about scepticism from Gavin Lingiah. “Seeking clarification from govt.”
MIP wrote, “UK today committed to ratify UPC agreement AND work to bring it in “as soon as possible”. If DE does too, it could still start by mid-2017″
Nonsense. EPO propaganda again.
Dr. Luke McDonagh said to MIP it “would be extremely pointless to ratify UPC, put resources into London court then leave anyway on Brexit in 2019 or thereafter.” (he responded to MIP’s statement that the government’s “statement doesn’t make any commitment post-Brexit”).
“Longer term, though, today’s UK announcement on UPC creates uncertainty about what happens post-Brexit & potential renegotiation of UPCA…”
–Managing IPMcDonagh also wrote “it reveals UK’s willingness to accept CJEU jurisdiction – the hard Brexit mask has slipped…”
Or maybe it just reveals that May and Lucy don’t know what the heck they are doing. They contradict themselves, as we showed in the previous part.
The person whom McDonagh responded to in the latter case had said that “IP Minister Baroness Neville-Rolfe expected to make statement on UK’s position regarding unitary patent and UPC at 5pm (UK time)” (there were already rumours about what would happen).
Watch how MIP distorted the record on this. Team UPC tries to raise the exit barrier by greasing up Lucy and turning the EU into a patent warzone. MIP helped them with tweets like this one : “Initial reaction to today’s #UPC news on Twitter seems overwhelmingly positive, especially from other EU countries” (not really, see the previous part of this series).
“…would be extremely pointless to ratify UPC, put resources into London court then leave anyway on Brexit in 2019 or thereafter.”
–Dr. Luke McDonaghWhen you live in an echo chamber and all you read are a bunch of patent law firms that you are subscribed to in Twitter, then inane statements like the above come out. “Been looking at all tweets with #upc,” MIP wrote. “Interested in all (informed) views!” But don’t they know that Twitter prioritises tweets from those whom they follow? Or that not everyone uses the same hashtag? Maybe they also subscribe to IAM, reading the magazine’s latest Kool-Aid from Sofia Willquist, Alan Johnson, Julia Mannesson, Gottfried Schüll, Christoph Walke and Dominic Adair. To quote the opening part alone (there is a paywall): “The decision by UK voters to leave the European Union has thrown plans for the Unified Patent Court into chaos. Specialists from three top European law firms discuss what is likely to happen now, as well as other key issues” (they evidently wrote this before Lucy wrote a statement, which technically changed nothing at all).
Writing about Lucy, one EPO insider told us “Baroness (Lucy) Neville Rolfe on her knees before #Battistelli, President of the #EPO, the #UK minister with responsibility for IP…”
Maybe Battistelli can throw some “Cooperation Money” at her, as he so often does. It’s his convenient way (method of choice) to pass a gift in exchange for a favour. Remember that Battistelli's legal firm that threatened me (in an effort to silence me) is itself part of Team UPC. This whole system rots when one realises just how well-connected all these things are. Patent lawyers set up bogus debates and lie to everyone using their media while even advertising bogus job openings (never mind setting up of courts prematurely) to cement this illusion of inevitability. Well, never underestimate the ability of Team UPC, the EPO and Battistelli to shamelessly break the law and get away with it. Nothing is as advertised and there is a lot of bullying, especially towards those who dare challenge the lies.
As one person explained it to MIP last week, “as rights holder would not engage with UPC without certainty of CJEU decision as to whether non-EU state can be UPC CS” (also see the aforementioned comment about CJEU).
“CJEU can decide on many more topics colliding with patent law.”
–Benjamin Henrion“Patent law does not work in isolation,” Benjamin Henrion wrote. “CJEU can decide on many more topics colliding with patent law.”
Businesses in the UK, if or when the time is right, should be able pool resources to take on Team UPC, maybe even taking these firms and their buddies to court over it. No doubt UPC opponents, i.e. just about everyone except the patent microcosm, will organise to antagonise any British attempts to override democracy, but for the time being it doesn’t look as though ratifying the UPC in the UK is even possible. It’s all just talk. The UPC has all along been ‘marketed’ using a big bundle of lies. Politicians who are foolish or corrupt (maybe both) repeated these lies, but the repetition itself does not make the lies true. The so-called ‘Unitary Patent’ is nothing but a conspiracy and some texts weaved together by those who are already rich in order to guard or expand their wealth. TPP was constructed in the same way and it didn’t take it long to collapse, as soon as the public found out about it and started fighting.
“Let’s scalp the UPC in Court now,” Henrion wrote. “We still have some Constitutional Courts to go and the ECHR in Strasbourg in the last resort…”
“Brexit is simply not compatible with the UPC.”Well, the UPC is still far from a reality and we need to keep it that way. The UPC would be a slap on the face of 99.9% of Europe’s population and if we set up a petition against it, we expect outpouring of support. For the time being, however, it doesn’t seem like we’re in danger of UPC verging a reality.
Someone called Ian Tweed, a patent attorney from London, sent me a “serious question” and asked “what’s your main issue with the UPC? Most SME clients I’ve talked to see positives and it’s not obligatory … The UPC doesn’t change substantive patent law. It simplifies pan-EU enforcement and makes it easier to knock out “bad” patents” … I am a patent attorney. But I’m not blind to criticism of patents. I’m interested to know why you consider that the UPC is bad…”
Tweed deleted his three tweets before I had a change to respond to them, but either way, I don’t know what SMEs he spoke to and what they have been told about the UPC. It seems like they were seriously misinformed as a lot of the above is untrue or inaccurate.
“Techrights is probably one of the very few sites pursuing the truth about the UPC and we intend to continue to do so.”To sum it all up, CIPA and others have been greasing up Lucy Neville-Rolfe with assertive letters, lies, lobbying events etc. This may have paid off for Team UPC in the short term, but it’s not actually changing the technicalities. Brexit is simply not compatible with the UPC. How many Brits (or Europeans in general) know that UPC is intended to help lawyers and large clients systematically rob them all? A lot of these so-called ‘news’ sites that celebrated the UPC last week were actually not news sites but Web sites of UPC conspirators that also set up lobbying events. Some news sites were also bribed by the EPO, so no wonder they sent out (or ‘beamed’) false information for other sites to faithfully parrot.
Techrights is probably one of the very few sites pursuing the truth about the UPC and we intend to continue to do so. █
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No, it’s not happening unless one is gullible enough to believe EPO-funded media
Summary: Another long installment in a multi-part series about UPC at times of post-truth Battistelli-led EPO, which pays the media to repeat the lies and pretend that the UPC is inevitable so as to compel politicians to welcome it regardless of desirability and practicability
THE UPC-CENTRIC EVENTS that we are seeing these days, some of which are organised by MIP (Managing IP) and IAM with support from the EPO, are a symptom of a rogue operation. Kluwer Patent Blog, part of Team UPC, continues to lobby for the Unitary Patent in the UK, even when it’s neither doable nor desirable, for reasons we are covering in this long series. Yesterday’s article from Kluwer Patent Blog was titled “Judge Grabinski: ‘Involvement UK is very positive for Unified Patent Court and Unitary Patent’” and it has attracted responses like “No democracy: such amendment would not need a revision of the UPC but could be implemented by the Administrative Com” or “Administrative Committee to replace the role of Parliaments to adapt the UPC in case UK leaves, pretty insane…”
Another part of Team UPC is joining this echo chamber. They are blogging about themselves under the heading “UK signals green light to Unified Patent Court Agreement”. But can they actually do this? No. Not really.
Earlier today we we covered yesterday's so-called 'roundtable' of the USPTO, noting the effect of having events or panels that are stuffed with just one side, barring any opposition from entering or at least speaking. This is what Team UPC has been doing for a long time and many examples were covered here over the years, predating even the name “UPC”. UPC hopefuls write about Brexit and the UPC, but the two are still incompatible. Watch what Darren Smyth, a booster of the UPC, wrote only days ago. Who is he kidding? Following all the misleading coverage from press paid for/bought directly and less directly by the EPO, some people still piggyback the false perception that the UPC will certainly come to the UK. Sorry, that’s not going to happen. Stop living in your bubble, UPC hopefuls…
All those sham debates like the one we wrote about this afternoon may make Team UPC feel confident, but they’re in for a surprise.
“Too many patent lawyers to my taste,” Henrion wrote to us regarding yesterday’s USPTO ’roundtable’. He watched the whole thing and said “Nader was there, but not even a[ny] software developers among the panels.”
Did we ever see any software developers at UPC events? Nope. Just lots and lots of lawyers and sometimes large businesses and executives who hire these lawyers. The EPO also dispatches Margot Fröhlinger to lie to the audience these days. Talk about preaching to the choir… what a pointless exercise in lobbying (to guests like politicians).
“UK government’s intention to ratify the UPC Agreement,” MIP wrote the other day (“Unitary Patent and UPC: A progress report” by Kingsley Egbuonu in London). But that is just meaningless if it cannot be done (it can’t). Here is how Egbuonu summarised it:
The German Federal Ministry of Justice updates Managing IP on Germany’s ratification timeline; IP Federation, BioIndustry Association, EPLAW and the UPC Preparatory Committee respond to UK government’s intention to ratify the UPC Agreement (UPCA); and some of the developments we expect in the coming months
Need we remind readers that MIP, Egbuonu’s employer, is virtually in bed with the EPO? We wrote about half a dozen articles about MIP’s UPC advocacy and relationship with the EPO. Do they really think that the public isn’t seeing this? Do they honestly believe they’re seen as objective observers?
Germany is still needed for intent to ratify the UPC. As Steve Peers put it last week: “UK & DE ratification will bring Unified Patent Court treaty into force treaty: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2013.175.01.0001.01.ENG&toc=OJ:C:2013:175:TOC … ratification: http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/agreement/?aid=2013001 … https://twitter.com/BrunoBrussels/status/803260415425843202 …”
It’s not as simple as that at all. In fact, if it ever gets this far, the population will quickly learn about what’s going on and then point out that these agreements are not constitutional and that the public is not being informed. It’s going to end up like ACTA and TPP.
Even UPC boosters like Darren Smyth wrote: “This does rather increase focus on the question of where is the German ratification? Are they ready to ratify yet?”
See this first comment on Darren Smyth’s cheerleading a week ago: “”pretty much a certainty” is a pretty bold claim in today’s world Darren!”
Here is another comment addressed at Darren, the UPC pusher (see his role in UPC propaganda events nowadays):
Sorry Darren, but “proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA)” does not mean the UK will ratify the UPCA. The ratification is anything but certain.
The move is simply to gain time and to try to have a better bargaining position when the actual Brexit negotiations are starting.
The day UK will sign the protocol on immunities, I will believe that ratification is on its way. Before this, it is just gobbledygook.
In clear it means UPC is further delayed. As long as UK threatens to ratify the UPC, but actually does not do so, the UPCA will be held in limbo. It is meaningless to continue with the preparations if there is no clear will to ratify. The present statement is anything but a guarantee for ratification.
And even if UK would ratify, could any sensible representative advise his clients to go for a unitary patent when it is not clear what the future of the UPC will be once UK has left.
A proper decision on the ratification will not become before the start of negotiations under Art 50 Lisbon. It should be by March 2017, or even later when taking into account the legal battle about the involvement up front of the parliament.
The situation created by this statement is not very pleasant for the remaining contracting states, but that is not to be a surprise. It is like the participation in the EU: we want to participate, not for the sake of being a member, but simply to insure that nothing can happen which goes against our interests.
The only way for the other contracting state to get out the deadlock is to give a time limit to the UK for deciding whether they want to ratify or not.
And it goes on, without exception. Nobody in IP Kat comments has expressed any optimism about the UPC in a post-Brexit UK. The next comment says:
As some other commentators have remarked already, the government statement should not change much for the moment.
Bearing in mind the history of the UPCA and its contents, it is a rather bold claim to say that the UPC was “not an EU institution”. On the other hand, this is pretty much along the lines shown by the UPC proponents from the patent profession. Also, we have repeatedly seen such formalistic sharade being applied in the very same context, e. g. when it comes to the solution on Art. 6-8 or the position of the EPO in relation to unitary patent protection. It is rather characteristic of the project as such, that a government obviously sees itsef forced to rely on positions as weak as these.
Anyhow, the announcement should bring the German ratification procedure back to life shortly. Should it be completed smoothly (which is not certain), I would expect that at least the German ratification instrument will not be deposited until there is a binding solution of the UK ratification issue instead of cloudy declarations of intent.
“I’m forging ahead with my castle-building program for my goldfish,” one person said with the help of a parable, “even though it has been floating on its side for a week.”
“The one about building a castle for my dead goldfish is my favourite,” Tufty the Kat wrote about it in Twitter.
Many people already realise that the UPC bubble is about to burst, no matter what Lucy ("in the Sky With Diamonds") says. Just look at this tweet which seemingly agrees with the comments in IP Kat, even though it comes from Christopher Weber, a self-serving UPC proponent from Kather Augenstein. Recall Lucy with her photo op next to Battistelli -- one that she publicly bragged about. It basically sums it up, does it not? Those two were already pretty close, and one seems to have taken the role of “pawn”. Here is another visual reminder as a photo (or picture) is worth a thousand words:
Dr Luke McDonagh’s remarks in Twitter are also quite noteworthy. Here he says: “PM May: “The UPC is not an EU court. Let’s ratify.” Baldrick: “But the UPC is bound by EU law & CJEU.” PM May: “Shhh, Farage may hear us!””
We know some people who have already contacted UKIP about this and UKIP is aware of the issues. That won’t go down well, will it?
The UPC simply won’t (probably can’t) be ratified in the UK once businesses and people realise what it is and what it can do to them (not for them). McDonagh added: “But leaves UK in a position more enmeshed with EU law than before June 23rd ref; makes hard Brexit yet more awkward…”
“Postpone the difficult questions for later,” one person wrote to explain what May and Lucy do for Battistelli here.
Here is another comment about this unexpected and bizarre move:
What a pointless exercise.
Why should the UK ratify an agreement it may well be forced out of during Brexit negotiations? Is the UK really so naive as to think that the EU is not going to look after itself first?
Without a guarantee the UK should sit still and let the negotiations play out…..
Another person said: “This is beyond exciting. The wheels are still on the bus. It remains to be seen if there is sufficient fuel in the tank to reach the next service station, let us hope the journey is largely downhill and without too many red lights.”
And here comes another: “Wow! A case of the UK sacrificing its UK litigators to help smooth Brexit negotiations? Ratify so as not to block the UPC and then hope (or rather desperately wish) that some fudge deal will be found to allow the UK to participate at some point in the future when no longer an EU state.”
Another one: “Bonkers. Absolutely bonkers. How can we be signing up to the UPC whilst simultaneously leaving the EU and ending the jurisdiction of EU courts over the UK? Nothing about the way Brexit is being pursued by HMG makes sense, but then I guess we shouldn’t expect differently when HMG has been set such an impossible task.”
Like we said earlier, not a single comment is optimistic about this. “So we are going to have UE rights in force across Europe (in the UK) at the time of Brexit,” one person wrote hypothetically. “Will we also get transitional provisions to turn those into UK patents?”
The answer to this rhetorical question is “no”. It makes no sense whatsoever.
“I fear that this is the worst of both worlds for the UK profession,” wrote another person. “I had watched my Trade Mark colleagues who are today in an EU system and who are faced with the prospect of exiting it with a certain smugness until today. Now we have contrived to enter a system that we may need to leave.
“Blinding negotiation tactics too Neville-Rolf!
“Of course it is what CIPA appears to have been pushing for (although who knows what they have been doing really as they move in mysterious ways), either because they are skilled tacticians or terribly naïve. Time will tell which it is.”
Another person called it “Astonishing!”
“Perhaps the conclusion is that this improves the UK’s negotiating position,” this person added, “especially if the court gets well “embedded” in London?
“Not the best outcome for patentees, though. Even more uncertainty added to the UPC (which creates a great deal of uncertainty on its own – particularly during the transitional period). Should be fun working out all of the permutations for this one!”
Now quoting Theresa May herself to highlight the contradictions:
Theresa May. October 2016. Conservative Party Conference.
“Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end.”
“We are going to be a fully independent, sovereign country – a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts.”
“But let’s state one thing loud and clear: …. And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen.”
So again, May is contradicting herself. She’s trying too hard to appease CIPA and some law firms.
Then came the epic comment that mentioned Michel Barnier‘s role in the UPC and it is pretty great an observation:
And the roller coaster continues…wow, just wow, haven’t had this much excitement in years, please pass the paper bag, I’m feeling a bit queasy. So according to our illustrious representative for IP, the UK is continuing with its efforts to sign up to a deal that will force sovereignty of the EU court system on its national courts even if it is no longer a member of the EU – can’t imagine how that will go down with the erudite population that so loudly voted to “take back control”…and, in passing, one in the eye for the greedy Italian governement though, eh, thinking its day had come to shine and bask in European institutional glory ? I wonder what Michel Barnier thinks of all this, he was after all, the mouthpiece of the political rationale to cajole the various EU states into agreeing to the UPC in the first place – the mind boggles !
Here is another good comment:
It seems Britain really does want everything: to leave the EU but to remain part of an important new EU patent system (which most of the Europeans outside Germany, France and UK didn’t want anyway). How can it think to ratify the UPCA when is has voted not to be part of the larger EU?
Isn’t this a case of the bureaucratic machinery wanting to plough on when the field has already disappeared in the storm?
Madness indeed and probably a waste of tax payers money..
Sorry to say (as a UK ex-pat lawyer) but the UK government behaving like a big kid that wants to eat the cherries and cream on the top of the cake but has already refused to eat the sponge layers….
A good parent would say, sorry Sweetie but you can’t have it all…
“This is just a pressure release valve,” explained a person, “they had to say something so they’ve said we’re going to keep going. No timescale on actual ratification, or even a commitment actually to ratify.”
And in reply to the above:
I too spotted the absence of a firm commitment to ratify.
If this is simply playing for time, however, it would have been better if the IPO had avoided statements such as “It [the UK] will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible”. If that is not intended to mean what it so clearly implies, then the UK will end up burning a lot of bridges… which would not be the best of starts to exit negotiations with the EU Member States!
So the media, some of it funded by the EPO, missed all these comments from actual insiders who know this stuff. “These are truly astounding news,” remarked a commenter, “that deserve a much wider circulation than the cozy club of patent specialists. But will anyone care in these times that some call “post-truth”?”
Another person asked: “Which department would ratify the Agreement? Is Neville-Rolfe’s or Boris’s?”
Well, they cannot pretend it’s not an EU thing, as the following comment points out:
Perhaps she hasn’t read the opening paragraph of the brochure on the UPC web site helpfully called “An Enhanced European Patent System”
“In December 2012 the Council of the European Union and the European Parliament agreed on two regulations laying the foundation for unitary patent protection in the EU. Shortly afterwards, in February 2013, 25 EU Member States signed the Agreement on a Unified Patent Court (UPC).”
I know she has been busy lately…
Later on another person wrote: “The UPC refers questions to the EU court. So will EU decisions have two incarnations – one ignoring the EU court decisions, and one for continental Europe?”
Still, they cannot simply pretend it’s unrelated to the EU. In the words of another commenter (most are completely anonymous, so there’s no fear or retribution for being honest):
From the official news release: “The UPC itself is not an EU institution, it is an international patent court.”
Ah, sure. Except that Art. 20 of that very agreement you intend to ratify explicitly says that the UPC shall apply European Union law in its entirety and shall respect its primacy, and Art. 21 adds that decisions of the Court of Justice of the European Union shall be binding on the UPC.
I knew we had now entered the post-truth era, but we are now into post-logic territory as well…
What would be funny now would be if Germany started dragging its feet on ratification, to get some extra leverage in the Brexit negotiations…
This UPC-related “announcement was devised by little Baldricks,” said the following, “completely clueless…”
I’m with the commenter “do not pull my leg”.
The announcement was devised by little Baldricks, completely clueless how mainland European minds work, who think they know how to “game” the forthcoming BREXIT negotiations, who have their cunning little plans how to come out of it with the best “deal” for England.
To those infected by wishful thinking I would suggest that the announcement reveals no HMG commitment whatsoever, just more playing for time, by an Organisation that hasn’t a clue what to do next.
Another response to the same post called it “bullshit beside reality!”
A longer direct response said:
our comments suggest that you believe that mainland European minds and English minds work differently? At best that sounds like some mild racism, or possibly you adhere religiously to national stereotyping? Without even appreciating which nations are involved: “Brexit means UK exit”. At least for the time being, the little Baldricks are meant to be devising cunning plans for the best “deal” for the UK.
I entirely agree that the little Baldricks don’t actually have any cunning plans and that HMG hasn’t a clue what to do next. Otherwise we wouldn’t need any announcement before actual UK ratification. Perhaps some political justification was required for the continuance of the ongoing UPC project at Aldgate Tower in London?
Responding to the above, one more person wrote: “Actually, it’s much simpler. HMG needed to give a firm decision at yesterday’s Competitiveness Council, because otherwise other European countries were planning to go ahead without us.”
So the consensus seems pretty clear in IP Kat comments. It’s a shame that the media, led by EPO-bribed publications, missed the real story and instead parroted publications like the Financial Times, obviously unaware of its financial ties to the EPO.
IAM has meanwhile been trying to shame Germany into the UPC. It has done this quite blatantly for a while and Benjamin Henrion wrote that they are “working on a Constitutional appeal in Germany. CETA was in the same process.”
“To the extent that the British public cares,” noted another observer, “this is going to be tricky to explain #UPC,” later noting “I say tricky, I mean it’s going to be highly entertaining to see the intellectual contortions necessary.”
“All [?] legislation for participation in #UPC has passed,” this person said later, “so no time for awkward questions in Parl’t”
Actually, there is plenty of time. Just a statement on some Web site is hardly enough to propel the UPC into a reality.
“This is true,” wrote the mouthpieces of Team UPC (MIP), “although it’s hard to think of a lobbying group that would push the anti-UPC case in UK at this time.”
Wait and watch…
It was the same in the days of battles over software patents.
“So Brexit means Brexit,” IAM wrote, “but maybe it’s going to be a bit softer than the rhetoric suggests. UK’s UPC ratification will create much goodwill.”
For who? IAM and its readers? On a separate occasion MIP wrote “UK to ratify UPC. Huge news for Europe, for global patent litigation & maybe an indication that whatever the rhetoric Brexit will be softish” (either way, Brexit means that UPC would be tricky if not impossible to start/maintain).
There were also some responses from other countries (“#EUCouncil #Compet Good news – UK about to ratify the unitary #patent agreement”), but these fail to take into account practical limitations. Who is this good news to? Patent law firms? Patent trolls? Patent bullies? All the above? At whose expense? And are they just building false hopes?
The real casualty here is the media, which Battistelli continues to corrupt as we wrote this morning. No wonder so many people fell for the delusion seeded by the Financial Times (financial ties to the EPO). █
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The Office which was once renowned for a good salary and enviable working conditions is becoming a collective of rookies without job security
Summary: Implementing yet more of his terrible ideas and so-called ‘reforms’, Battistelli seems to be racing to the bottom of everything (patent quality, staff experience, labour rights, working conditions, access to justice etc.)
THE PREDOMINANTLY FRENCH EPO management is a gold mine of scandals, yet German officials seem less interested in these scandals than French officials, seeing what a huge PR disaster Team Battistelli has become for France.
Germany’s Heiko Maas was mentioned here this morning and also last night in a caricature. He is now mentioned in this new article titled “Europäisches Patentgericht: Nun holpert die Vorbereitung in Berlin” (translation from German is needed) and we hope he intends to actually start paying attention to what happens at the EPO right now.
To quote one new comment from today:
I have a question:
How was the situation to begin with? The csc had legally chosen representatives in the appeal committee. Is that correct? Then BB suspended/dismissed those members. Is that correct? But they still remain the legally chosen representatives, wouldn’t they? So when management refuses them to take part in the appeal committee, who is blocking the procedure? Please, can someone explain to me if this is the actual situation? Thank you!
We have actually written about 4 articles about this. Battistelli, as one person explains, “warned (and possibly downgraded) the CSC appointed members. Because they did not vote as instructed…”
Does that sound familiar? Well, Battistelli threatened the independence of the boards, too. Then he wonders why there’s no perception of justice inside the Office? Here is the full reply:
The president warned (and possibly downgraded) the CSC appointed members. Because they did not vote as instructed by the lawyers of the EPO.
The CSC therefore decided, that they cannot appoint new members without a guarantee that they would not be punished for their work.
Formally, the CSC is therefore the blocking party.
Morally, the president.
Any newly appointed members would be tainted and cannot decide freely since those cases.
Speaking of the boards that lost their independence (a judge remains on house ban), watch this new tweet from the EPO, which links to this ‘job’ vacancy (warning:
epo.org link). It’s not actually a job but in the words of the EPO: “If you are a national judge in an EPC contracting state you can do an internship at the EPO boards of appeal…”
What kind of judge wishes to explore an internship? The Boards of Appeal (BoA) are SEVERELY (or critically) understaffed, so what the EPO needs is hiring of full-time staff, not interns.
Another new tweet from the EPO, posted today linking to this ‘job’ vacancy (warning:
epo.org link), says: “Professional representatives with experience in prosecuting European patent applications should have a look at this…”
Our suspicions seem to have been justified then. Battistelli is getting rid of (or driving away) experienced examiners that are well paid in order to hire low-salary temporary staff on short-term contracts or internships. EPs will be worthless if this carries on. Does the Administrative Council mind at all? They’re supposed to have patent quality on the agenda later this month. █
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