07.15.16
Posted in Europe, Patents at 7:53 pm by Dr. Roy Schestowitz
Not only the Unified Patent Court (UPC) is going down under but also its chief proponent, who might take the Office and the whole Organisation with him to the grave unless his nepotists’ regime gets stopped peacefully (unlike in Turkey right now)
Summary: The latest evidence surrounding the demise of the EPO’s reputation and quality of work, as well as the demise of the system Battistelli forcibly tries to introduce (a race to the bottom)
THE EPO is preparing for the next lobbying event of Battistelli. It will (if he survives this long in the job) cost him millions of Euros. Oh wait, no… he'll have the EPO foot the bill, as usual. What has happened to the EPO? Even the marketing stinks (almost no tweets today and in yesterday’s truly awkward tweet no links were included, just the usual and rather corny stock photography). People keep telling me (privately) that quality of patents nosedived and some people even write about it publicly. This clearly isn’t the EPO I respected and wrote about (sometimes positively) a decade ago. It is rapidly going defunct and if we strive to save the EPO, then we aren’t doing a terribly effective job so far. The deeper Battistelli sinks, the more damage is caused and still he refuses to resign while the Administrative Council fails to do its job and fire him. That’s just how messed up the Office and the whole Organisation became after Battistelli’s (and his circle) coup. “I don’t know,” wrote one person today about whether Battistelli just wants to ruin the Office. “However, I have my suspicions that money may be at the root of all of this.” Remember that Battistelli’s contracts remain secret and information we have about his current salary contradicts what he publicly stated. The Administrative Council’s Chairman is complicit in hiding information about this, so what kind of oversight is this? Even FIFA looks like an institution of integrity compared to this.
“The Administrative Council’s Chairman is complicit in hiding information about this, so what kind of oversight is this?”It might take a while longer to save the EPO (meaning, saving it from the coup d’état), but one thing that won’t be saved is the UPC, at least right here in Britain. This ‘baby’ of Battistelli is being “knifed” (to use the proverb) before it’s even born.
“Following Brexit,” said IP Magazine, “the EPLIT has urged the government to take the necessary steps in ratifying the UPC Agreement” (EPLIT is just a bunch of self-serving parasites and this article, which is behind a paywall, fails to say that EPLIT overlaps Team UPC, i.e. those who stand to benefit from their own antidemocratic creation).
“Even FIFA looks like an institution of integrity compared to this.”To quote the article: “Following the UK’s June ‘Brexit’ vote, the European Patent Litigation Association (EPLIT) has urged the country’s government to take the necessary steps in ratifying the Unified Patent Court (UPC) Agreement ‘as soon as possible’.”
Once again they are showing their true colours and utter disdain for democracy or law for and by the people. This is a theft of democracy; they’re trying to steal democracy in order to increase their profits. They’re not even hiding it anymore.
“A longtime pro-UPC blog finally admits that UPC is in very serious trouble.”Truth be told, the UPC is dying, hence its constructors are rather nervous. They’ve tried to write the law behind closed doors for a number of years and it all goes down in flames this past month. Cronyism is self-defeating in this case.
A longtime pro-UPC blog finally admits that UPC is in very serious trouble. Earlier today it published “Brexit vote: ‘Prepared path to Unitary Patent system might not exist anymore’” [via]
To quote a portion: “Can the Unitary Patent system still enter into force? Is it attractive without the UK or will companies rather stick with the established patent system as in force right now? According to Dr. Axel Walz, co-founder of the IP Dispute Resolution Forum (IPDR) in Munich, these topics have been discussed a lot among German colleagues after the UK vote of 23 June 2016 to leave the European Union. In an interview with Kluwer IP Law Walz said he thinks it is ‘at least doubtful’ whether EU law allows for the establishment of a Unitary Patent system with the inclusion of a non-EU-member.”
Henrion wrote about the above that “European companies are still protected from the harmful effects of UPC specialized patent court and patent trolls…”
Well, we need to ensure it stays that way.
Regarding the UPC and EPO, one person wrote at IP Kat:
May i suggest that someone might like to check what the EPO management’s line on all this is? Rumour had it that top management may be preparing for a delay in the EU patent with consequences for other projects/roadmaps. That may be an indicator of what is going to happen. The EPO won’t dictate matters but will be reliant and perhaps well informed.
Well, the UPC is increasingly being recognised as a dead end by the legal community/profession, as we showed here before. A day or two ago two more articles were published on this matter. One was titled “Is Brexit an IP Exit?” It said: “The Unitary Patent, which has been moving towards approval, provides for a single patent which can be granted for all EU-member countries, with a single Unified Patent Court for enforcement throughout the EU. Prior to the Brexit vote, it was widely expected that the Unitary Patent and Unified Patent Court would be implemented by mid-2017. However, it is likely that the uncertainty created by the Brexit vote will delay this implementation date. Moreover, many commentators believe that the U.K. is unlikely to be allowed to participate in the Unitary Patent and Unified Patent Court after it leaves the EU, as it would require the EU to provide the U.K. with a benefit without its corresponding EU obligations.”
“Rumour had it that top management may be preparing for a delay in the EU patent with consequences for other projects/roadmaps.”
–AnonymousAnother new article about this was titled “Brexit Prompts IP Uncertainty for US Portfolios” and it said that “[s]hort-term, the exit will have little to no effect on patents. The UK is a signatory to the European Patent Convention of 1973. As such, its patent system is governed by the European Patent Office (EPO). The EPC is a treaty separate from the EU. Indeed, countries such as Albania, Norway and Switzerland are not members of the EU, but are member states of the EPO. Similarly, it is anticipated that the UK will remain a member state of the EPO, and UK patents and process will still be governed by the EPC.
“That said, the EU was expected to launch the so-called Unitary European patent system and a Unified Patent Court (UPC) to resolve issues related to the Unitary Patent. Under this new unitary patent system, a single EU patent would issue from the EPO, offering patent protection throughout the entire EU. This contrasts with the current EPO system, under which the EPO performs a centralized examination and then returns the application to the individual national patent offices, which then issue their own national patent, conferring their respective bundles of patent rights. It was anticipated that the EPC would receive sufficient ratification signatures to come into effect sometime in 2017.
“You want only justification for the existence of the UPC.”
–Anonymous“However, the terms of the EPC agreement require UK ratification of the agreement in order to come into effect. If the UK is outside of the EU, it is reasonably anticipated that that launch of the Unitary Patent and the UPC may be delayed. We are waiting to hear from the respective EPC negotiators what specific effect the formal withdrawal will have. For example, the agreement may be altered to remove the requirement of the UK accession, and proceed with another country as one of the three required signatories. Alternatively, and depending on how other bi and multilateral negotiations progress, it is also possible that the UK might be permitted to join the unitary patent system without being a member of the EU. Accordingly, due to the uncertain future of the unitary patent system, clients planning to take advantage of that system should reevaluate their future filing strategies.”
Going back to IP Kat, one person wrote in a tongue-in-cheek fashion: “You want only justification for the existence of the UPC. You are a true European. President Juncker will add you to his Christmas card list.”
Another person was sort of faking (wishful thinking) a statement of UPC agenda and someone wrote that “UPC will create a single point of failure for software patents in Europe,” demonstrating that not only patent lawyers ‘in the know’ are involved in this discussion at this stage. Responding to “they DO represent all of British industry” (about a bunch of patent maximalists) the person said: “Sorry, my company was not part of it. The UPC will create a single point of failure for software patents in Europe, and those patent crooks can hardly deny that. In fact, we should go in web demonstration mode against the UPC like my company did for the past failed software patent directive.”
“…we should go in web demonstration mode against the UPC like my company did for the past failed software patent directive.”
–AnonymousNotice the part which says “we should go in web demonstration mode against the UPC like my company did for the past failed software patent directive.” Is it 2005 all over again? Will it ever be?
An anonymous commenter said: “What are you on about? It isn’t clear to me whether you want or don’t want software patents. I wouldn’t want you representing me…”
Well, clearly not a software developer this last comment… no software developer that I know ever wanted or defended software patents. The more software professionals get involved in this debate (over UPC) at this stage, the better. Battering of what remains of the UPC will help ensure it’s nailed inside a coffin for good; no more renames and embellishing (for marketing to new European politicians who are clueless on these matters). █
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Posted in Europe, Patents at 6:30 pm by Dr. Roy Schestowitz
Given the seriousness of these matters, will anyone bother publicly challenging the lies below?
Summary: Terrible attacks a day ago in France are being exploited by Benoît Battistelli for black comedy or a truly absurd statement under the EPO’s “news” section
WHENEVER there’s a terror incident in Europe the EPO issues a corny statement either from Battistelli, about Battistelli, or quoting Battistelli. They are trying hard to frame Battistelli as some kind of heroic sympathetic leader who protects staff from terror and all his atrocities (and wasteful bodyguards) are somehow justified “because terrorism!” It has become such a common tradition that this morning I predicted it would happen within hours and it soon turned out that I was absolutely right. It only took very little time for Battistelli to piggyback terror incidents again (warning: epo.org link, which can facilitate tracking of cookies/IP addresses) and the wording therein was hypocritical to the extreme.
“They are trying hard to frame Battistelli as some kind of heroic sympathetic leader who protects staff from terror and all his atrocities (and wasteful bodyguards) are somehow justified “because terrorism!””“Just patent terror attacks,” Petra Kramer wrote, “that will surely stop ISIS. Unleash the patent trolls. Sue terrorists!”
“Outrageous and pathetic that Battistelli misuses such an awful event to disseminate lies,” wrote another person, adding: “EPIC fail!”
Benjamin Henrion laughed at the part which says EPO believes in an open and inclusive society based on fundamental principles of freedom, equality and justice after I had pointed this out. One whom the EPO had bullied with bogus trademark claims replied with “yep and I believe in an open and inclusive society where beer would flow from each and every fountain ;)”
For those who have not been following this saga long enough, remember that Battistelli likes to pretend to be a victim. This is his longstanding media strategy.
“Unleash the patent trolls. Sue terrorists!”
–Petra Kramer
To understand why Battistelli ‘milks’ terror attacks several times per year, see our previous articles about previous such opportunistic efforts. The EPO justifies oppression by claiming that it is under attack and now it says that Battistelli “believes in an open and inclusive society based on fundamental principles of freedom, equality and justice.”
Yes, Battistelli says he believes in “freedom, equality and justice” — on the very same day that there are hearings at The Hague regarding Battistelli's abuses! Isn’t that priceless? The timing could not be better because Battistelli actively fights against justice and refuses to obey the law (or even rulings from the highest courts). One might say that this is just the latest of many lies from Battistelli. To put it politely…
“Outrageous and pathetic that Battistelli misuses such an awful event to disseminate lies…”
–AnonymousThere is this new comment about Battistelli and his own abuse of justice. It says that Battistelli “crossed a line that no President of the EPO should ever cross. After two years it came up with a reform of the BOA that is “not perfect” (a nice understatement to say that it is plainly bad). In respect of the other points of the Council resolution it seems that he also failed do deliver.
“Then what happened at the last Council? Did he blackmailed the AC by telling them “You want a reform of the BOA but I am not going to give you a better one”
“Instead of saying him “Thank you for your service we are now going to look for somebody who is fit for the job and can also draft a reasonable reform” the members of the AC probably said “How nice of you to give us some face-saving minor amendments! We approve your reform because it could have been even worse”.
“The last Council was an all-time low for its members but I am afraid that worse may come in the future now that BB [Battistelli] is aware that he can force them to do whatever he wants.”
We wrote about this before. “To me it looks as if he [Battistelli] was on a course set to destroy the office,” said another new comment. To quote the full comment: “If I understand what you are saying, something else is more important to Battistelli than the board of appeal. What is it? What is he trying to achieve? I am asking the question because I really wonder. To me it looks as if he was on a course set to destroy the office, but this cannot be. What interest would there be in that? So where are we heading to? How will the office look in five years?”
Any justice for patents would be hard to fathom or trust when the EPO itself makes a total mockery of judges (even at The Hague). Speaking of patent justice, a decision has just been overturned and an article published about it to say: “The patents for bivalirudin (Angiomax) were upheld by a federal court following a prior ruling that they were invalid. Drugmaker the Medicines Company says it is “now considering all … options with respect to Hospira, Mylan, and other generics.”
If that was Battistelli facing this federal court, he would not panic. He does not, after all, believe that he needs to respect the rule of law and obey court orders. But hey, earlier today he said he believed in “freedom, equality and justice” just because it suited him and his media strategy (or misleading narrative). █
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07.14.16
Posted in Europe, Patents at 3:50 pm by Dr. Roy Schestowitz
Battistelli put all his eggs in the “UPC” basket, attacked the sceptics, and now he digs his own grave
Summary: The UPC seems very unlikely to ever become a reality in the United Kingdom and even in Europe as a whole
THE UNITARY PATENT is a subject we have been covering for many years, since before it was even known as anything “unitary” (words like “community”, “EU” or “European” were more common a bunch of euphemisms at the time). The UPC is definitely not for the EU or for Europe. It is not for Europeans or even for EPO staff (who are typically European scientists); rather, UPC is for prosecutors/lawyers and for mega-corporations (their clients), billionaires and Battistelli, who is dangerously close to them (see his political affiliation and professional background). The UPC must be stopped and EPO examiners too should work hard to stop it. Nothing would upset Battistelli more because his interests are often the very opposite of EPO interests (for instance, systematically lowering the quality of patents).
“Lobbying for UPC opened to non-EU states,” Benjamin Henrion (FFII President) wrote earlier today, “dreaming wide open…”
Henrion referred to the British and paraphrased IP Federation as saying outrageous things. “Not reopen swpat [software patents] debate: we prefer to see the minimum of amendment to the UPC Agreement (i.e. to remove the UK),” he wrote. We were rather shocked to find IP Federation referred to as “UK industry” in this new comment (original post mentioned here the other day). Basically, someone has just called patent lawyers and other self-serving parasites (when it comes to the UPC) the “UK industry”. To quote:
UK industry has announced a position on Brexit at http://www.ipfederation.com/activities.php?news_id=133
“Without a guarantee of continued UK participation post-Brexit, the UK should not ratify the UPC at present.”
It didn’t take long for some people to respond to this publicly. “Please note,” this person wrote, “IP Federation is not synonymous with UK industry [...] If the UK does not ratify now, the whole UPC/UP project may simply evaporate” (which would be good for the real UK industry as much of it is SMEs). To quote:
Please note, IP Federation is not synonymous with UK industry [see the very short list of members] and the position does not appear to be unanimous even among that self-selected group.
The declared position is either extremely naive (on the part of those who believe there can be any guarantees in the present political climate), or extremely devious (on the part of those who never liked the whole idea anyway and rather hope it will just go away).
If the UK does not ratify now, the whole UPC/UP project may simply evaporate. The benefit to that part of UK industry that is not part of IP Federation’s self-selected cabal will be lost.
“Not many SMEs I grant you,” said another person about IP Federation’s representation:
Strange comments about the IP Federation. The IP Federation represents a significant part of British Industry. Not many SMEs I grant you, but significant nonetheless.
In any event, their position seems to me to be pretty sound. Why would anyone want a patent that may not be valid in one (or more) jurisdictions? That’s exactly what those who insist on ill-conceived quick ratification are asking for. There are so many questions that cannot be easily answered and, for which, the answers may be challenged in future even if they are answered that certainty is required. The easiest way to be certain is to NOT ratify. Status Quo maintained. If the UPC system can be adapted to make it certain (unchallengable) that the UK is/can be clearly in or out then all well and good.
One person said that “IP Federation positions are almost always taken up by the CBI (who don’t have much expertise in the relevant areas) and they DO represent all of British industry.” No, they don’t.
“UK participation in UPC is silly,” Henrion notes, considering the fact that the UK plans — as per the referendum — to exit the EU.
According to this new article from British media for lawyers, “UK ratification of the Unified Patent Court Agreement soon seems politically unrealistic, says expert” (that’s the headline). To quote some bits:
Patent law specialist Deborah Bould of Pinsent Masons, the law firm behind Out-Law.com, said that it would seem “politically unrealistic” to expect the UK to pass legislation giving effect to the UPC Agreement if its participation in the UPC and unitary patent system was not guaranteed to continue after the country leaves the EU.
Bould was commenting after Benoît Battistelli, president of the European Patent Office (EPO), suggested that if the UK ratified the UPC Agreement before leaving the EU it could be allowed to continue its participate in the new system after its exit from the trading bloc. He suggested, though, that continued participation post-Brexit would be subject to the outcome of negotiation between the UK and EU countries.
[...]
“The UK’s participation in the new patent system is a major part of its attraction, and its involvement was a factor in the decision that London should host a branch of the Central Division of the UPC. That said, subject to a possible amendment of Article 89 of the UPC Agreement, the Agreement is worded in a way which makes it legally possible for the UPC framework to continue without UK involvement,” he said.
One problem with all of these articles is that their authors speak to patent lawyers rather than actual stakeholders in the industry. As UPC is a Trojan horse for software patents in Europe, expect many software companies to oppose it strongly. Published a short while ago was some UPC promotion from Jane Lambert, a longtime UPC booster. She wrote:
Patents are granted for the UK by the Intellectual Property Office (“IPO”) pursuant to the Patents Act 1977 and the European Patent Office (“EPO”) pursuant to the EPC. There is not yet such a thing as an EU patent but there is an agreement to set up a Unified Patent Court (“the UPC agreement”) and legislation to permit the EPO to grant patents for the territories of most of the member states of the EU including the UK, France and Germany to be known as unitary patents.
[...]
As Parliament has already enacted legislation to enable the Secretary of State to ratify the UPC Agreement and the statutory instrument giving effect to ratification has already been drafted (see The Draft Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 10 March 2016) it is also possible that the unitary patent and Unified Patent Court will come into being before the UK leaves the EU. However, the UK would cease to be party to the UPC Agreement upon our departure since the Agreement is open only to EU member states.
[...]
The only intellectual property right affecting the software industry that would actually cease to apply to the UK upon our departure would be the EU trade mark. The courts in the UK that have been designated EU trade mark courts will lose their jurisdiction over EU trade mark matters. However, registrations under the Trade Marks Act 1994 would be unaffected and EU trade marks would continue to apply to the rest of the EU.
It doesn’t matter how much these patent law firms try to promote the UPC, Brexit is a real slap on their face. Days ago the EPO’s Twitter account again promoted the dead/dying UPC using Battistelli's lies and lobbying in Munich. Are they not even trying to hide their meddling in political and legislative matters? What has the EPO become, a think tank?
“UK ratification of the UPC is what everybody else is begging the UK to do,” says this new comment, but it’s a lie. Team UPC begs for it, but it’s not what people in the UK beg for (they don’t even know what it is and probably never heard about it, due to the secrecy). Here is the full comment:
Good argument from Millipede. UK ratification improves the negotiating position of the UK, trying to squeeze a good “deal” out of the EU as it negotiates its exit. Who in the UK could be against that?
Further, UK ratification of the UPC is what everybody else is begging the UK to do. The work’s been done already. A prime ministerial nod is all it now needs, I am told
Theresa May is a woman who does the right thing, rather than just court popularity. Just the right person needed now.
So Theresa, hold back on Art 50 by all means but, if you care about the UK’s reputation in the world, screw your courage to the sticking place and get on and ratify the UPC. There is no reason not to, and every reason positively to do so.
In time for May becoming our Prime Minister one person wrote:
But with time limited after Art 50 notification, might not it be to May’s benefit to hold off on ratifying the UPC in return for some other concession? Joining and then (messily) leaving serves her no purpose but eases everyone else’s interests so is a good bargaining tool. Why give it up a pawn for free straight off when you have bigger treaties to negotiate from weak positions?
Calling/urging the UPC propagandists to just accept the reality, “A true European” wrote:
It is amazing to see how members of the profession are hoping for a quick ratification of the UPC by the UK or are trying to find ways to keep the UK in the system in spite of the Brexit. Thinking of bringing back remaining non EU- member states in the UPC is simply laughable. EPLA is dead as dead can be.
Millipede’s contribution in this respect is revealing:
- the UK will have the advantage of the London seat of the UPC;
- the UK will have the advantage that once the system is started they will be considered indispensable for the continuation of the system (they are already deemed to be indispensable before the system has started), which will improve their negotiation position.
Having all the advantages but no inconvenient. That has been the UK attitude all along its participation to the EU. The presence of UK would certainly have been good for the system, but to come with the arrogance of being indispensable is going a trifle too far. Enough is enough!
The numerous attempts to salve the participation of UK at any rate is nothing more than a desperate attempt to try not losing the considerable personal profits the promoters of the UPC expected to make with the full UPC. It is clear that a UP without UK is much less interesting. But a Brexit is a Brexit.
Have those distinguished gentlemen thought of the mess their clients will be if the UK ratifies for latter leaving the agreement which is only be open to member states of the union? Probably yes, as it means more need for consultation, hence more fees. Cupidity has limits.
Does all those distinguish gentleman think that the UK parliament has nothing else to do than quickly ratify the UPC? Sneaking in some continued involvement with EU law in spite of the Brexit? I would like to see which explanation a MP will give to his constituency at the next elections if his constituency voted in favour of Brexit. As any MP wants to regain his seat, he would he be foolish enough to brave the opinion of his voters in this respect. A quick ratification is no more than wishful thinking.
Art 87(2) of the UPC Agreement provides that the Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law. The amendments to the Agreement envisaged are of administrative nature, and said committee cannot take decisions which are of political nature. Amending Art 84 to sneak UK in is not in the competence of the Administrative Committee. Art 87(3) Agreement provides a protection mechanism should the Administrative Committee take decisions on a political level.
Instead of running after something which has gone, it would be wiser to put energy in saving what is left from the UP/UPC once UK has gone, but then to look at the matter with fresh eyes. The matter should be simplified and the influence of common law should be thrown overboard. After all, UK has left and the continent is not an area relying on common law.
“If the UK is to ratify now,” wrote the following person, “it will be a total mess later on.” Well, then forget about it and never ratify it. British people don’t need it and if they knew more about it, they would not want it either. Here is the full comment:
If the UK is to ratify now, it will be a total mess later on.
Just think of the unitary effect scope when the two years delay will lapse should no agreement be found ? Remember how Serbia and Montenegro separated ? Patentee had to register their former patent to the Montenegro IP office. One could expect that a unitary patent territorial scope be reduced when the UK formally leaves EU, but will it be. Then, hopefully some UK laws would provide for a similar registration at UK IPO (and what about Scotland if a Scottish IP Office is enacted at some point ?). Overall, the british parlement might spend the next two years just adapting all laws to the Brexit. No need to add special legislations for a short lived unitary patent. UK courts would not have juridiction on former unitary patent over the UPC countries territories. Conversely, UPC would not have jurisdiction for former unitary patents over the UK territories. What about pending actions before the UPC Court of first instance in the London section and in other UPC countries ? and before the Court of appeal in Luxembourg ? Think of the clause “as an object of property” if the first applicant is from UK: then, the unitary patent applicable law would change upon the UK leaving with German law applying in a number of instances. This might be bad news for international company having their UK subsidiary applying for EP patents.
If the UK ratifies, it would be such a mess that no one (whether UK applicant or non-UK applicant) would ask for the unitary effect until the UK has formally left EU. Even EP patent bundles might be at risk unless you opt out.
Fortunately, this will not happen because the German will not deposit their accession up until the UK has left EU. Germans are not likely to gamble the whole European patent system on Brexit issues.
EU has to immunize itself from future inescapable UK laws and endless court actions up to the House of Lords. Just think of the SPCs legislation and the european first marketing authorization.
Recalling the European Patent Convention (EPC), one person noted the following:
And there was me, thinking about the 1973 European Patent Convention, a beautifully simple and rigorous model law of patents that has since then swept the world and has been adopted, more or less verbatim, all over the world. It came out of a fusion of (mainly) German and English patent law principles. What a shame, that Europe is no longer a beacon to the rest of the world, about how to live together in harmony.
English common law fact-finding has a role to play, in keeping litigants honest. Discovery and cross-examination are the only effective tools to stop parties in court from trotting out a string of porkies. How sad then, that a mainland European can’t wait to see the back of English common law fact-finding procedures.
“A quick ratification is just promoting uncertainty,” wrote the following person. To quote the full comment:
Do all those promoters for a quick ratification will honestly advise their clients to go along with the UPC knowing well that the Brexit is looming and will have presently unknown consequences? Please let’s be serious and look a bit further than the end of one’s own purse strings.
One thing investors hate is uncertainty. A quick ratification is just promoting uncertainty. The hope of finding some legal trick to keep UK in the UPC, or even bringing in further non-EU members, is not to be taken seriously. What has to be envisaged is anything but a “minor” reform of the UPC agreement.
Should UK ratify, it still would need Germany to ratify for it to enter into force. Nothing more is certain. Do you think they are so stupid to give an ace away just to please the profession? Such an ace is as well a bargaining option, but for the other side. This fact seems have been forgotten.
Should the UPC start in 2017 with UK in it, the only direct effect would be a high rate of opt-out, probably near 100%. No sensible patent owner would embark on such an adventure. The UPC might be in force, but with no or very little effect. Has any of those vehement promoters of quick ratification ever thought of this?
Sorry for Max Drei and Millipede, Brexit is there, and that’s it. I have rarely seen so much cynicism and selfishness being expressed in this blog. As another blogger said, all the advantages but no inconvenient…
To paraphrase Max Drei: dear Angela do not ratify the UPC before the Brexit has taken place. Do not give this ace away to Teresa. It would just bring about a big mess.
“Back to the drawing board I am afraid,” the following commenter wrote:
Some of the suggestions here are laughable. A quick ratification from the UK to get the system up and running, with the option then of the UK leaving the system in due course (as per Millipede’s “win-win”)? I don’t think so.
Someone seems to have forgotten that the UPC is not simply a playground for patent litigators, it is a venue for companies to resolve their disputes. No major patent holder is going to leave its patents in the system under these circumstances. Thus, if everyone opts out, the system is going to be (using the phrase used by a commentator on an earlier post) an ex-parrot from the day it is born.
Back to the drawing board I am afraid….
One person spoke about the imperative of Brexit:
Let us hope that “Brexit means Brexit” is good old fashioned UK politics in which success is like rowing, staring fixed.in one direction while moving rapidly in the opposite.
Even if this is a vain hope: law is a servant, not a master, and given political will, much can be made possible.
Attacks on UPC sceptics came from “Anonymous” (probably an aggressive patent prosecutor) and several other offensive or inane comments will hereon be omitted to improve the signal-to-noise ratio. Basically, patent lawyers who invested a lot in UPC transitions don’t want to see it go away (Bristows for example), as if the public doesn’t count and they deserve their ‘toys’ no matter the circumstances (and Brexit). Speaking ‘on behalf’ (i.e. hijacking the voices) of SMEs and the British industry is a very dirty tactic. One person wrote about “the “pro-UPC” commentators” as follows:
I do not think that the “pro-UPC” commentators here are necessarily motivated (solely) by the thought of future profits. Remember, there will be many in the IP profession who will have invested considerable amounts of time and effort (as well as resources) in preparing the way for the advent of the UPC. Not wanting to see all of that go to waste is surely an understandable emotion, so let’s not cast aspersions where none are really necessary.
Having said all of that, I have to say that I view the proposals for saving the UPC as akin to grasping at straws. Perhaps not completely hopeless, but not all that far from it.
It is certainly sad that yet another attempt at “harmonising” patent litigation in Europe looks set to be consigned to the waste bin of history. Nevertheless, at least from my perspective, there are some silver linings. Foremost amongst these is the possibility to re-open the issue of harmonisation of national patent laws. One of the biggest failings of the current UPC Agreement (and associated EU Regulations) is the fact that it leaves too many issues open with regard to applicable laws (for infringement and other matters). This can only lead to the kind of uncertainty that litigants so dislike.
From this perspective, those who are truly interested in a harmonised patent litigation system across Europe really ought to grasp with both hands the opportunity presented by Brexit (to properly address the issue of harmonisation of national laws). There will no doubt be political hurdles to overcome, but it is surely worthwhile taking on those challenges to secure a noble objective, namely the delivery of a robust and harmonised patent litigation system.
Is there anyone out there who is up for the challenge?
A patent attorney, who is regularly commenting in this site, wrote: “Lots of discussion on what companies will do – mainly from the point of those in the profession.”
Well, it’s a coup, so interests of SMEs do not count, even if they all generally oppose the UPC [1, 2] for good reasons. It’s almost as if it all boils down to money/earnings of patent law firms, never mind the effects on the local industry (e.g. abuse by patent trolls). The following comment spoke about this:
Lots of discussion on what companies will do – mainly from the point of those in the profession.
What drives companies’ decisions? Money.
The unitary patent provides a significant value for money option whether the UK is inside or not.
The UPC provides significant extra power over having to separately litigate in each country.
Even if the UK has to leave on the worst possible terms [no membership of the UPC, no membership of the unitary patent]:-
- does anyone believe the UK will not provide transitional provisions to ensure continued effect of unitary patents in the UK either by unilateral extension (unlikely) or deemed resumption of national effect of the European patent (more likely)?
- does anyone believe the UK will not provide for suitable transitional provisions for cases underway at the UPC?
Contrary to the impression given by recent events in the UK, politicians are not blind to money either. Something that is good for industry (and cannot be characterised as tax dodging) attracts political attention. This applies whether it is the UK government seeking to assist UK industry by having the UPC (and particularly the UP) open as soon as possible – or the German government seeking to reduce costs for German companies doing business in the UK.
The money says ratify. Will the politicians listen?
Where there’s a will, there’s a way: and where there is wonga, there is will.
“UPC may be good for big industry in or outside Europe, but certainly not for European SMEs,” another person wrote. Here is the full comment:
I have always been told that the UPC has been set up for the benefit of European Industry and especially it’s SME’s. UPC may be good for big industry in or outside Europe, but certainly not for European SME’s. The best proof of this is the idea to create an insurance in case of litigation for European SME’s, which by the way still needs to be put together.
It is interesting to see now that the prime beneficiary will be, inter alia, US SME’s. And for sure they will chose to be represented by UK lawyers and representatives for a large part. When this is not an incentive to push the UPC in UK for its own benefit, then nothing will ever be an incentive. As already said by another blogger, cupidity has limits.
I agree that the fears expressed towards the UPC remind one of the fears raised before the opening of the EPO. But this fear bears no relationship whatsoever with the Brexit. Please do not confuse the issues.
In any case, in view of the solid national traditions and the way some mock UPC trials proceeded, the biggest role will be for the Court of Appeal of the UPC in order to harmonise those different national approaches. In any local court with two judges from the same country this is bound to happen. Not in the Central division, but then with the Brexit why should there be a division in London? The answer is simply no. All the advantages and not any inconvenient……
One commenter said if there is a political will, there is a way: should the UPC have to be renegotiated, this does not mean that it will never be possible to come to an agreement. It could be strapped from all the wrong things which presently have been put in the agreement. But with the Brexit, UK does not have to put its nose in it.
There are plenty of parallels/similarities between TTIP/TPP and UPC as it’s not about what’s good for the population or even businesses, just mega-corporations (usually foreign). “I work for a mutlinational company,” the following commenter wrote, “so luckily, our US comrades will received advice from within Europe that represents their interests.” Here is this rather revealing comment:
There is a big difference between the EPC and the UPC. Does it need to be spelt out? One system gives pan-European rights in one swoop and the other takes them away.
I work for a mutlinational company, so luckily, our US comrades will received advice from within Europe that represents their interests.
I have to say, I find the tone of the introduction patronising and xenophobic. but then I’m English, so I’m in the European minority.
“So a quick ratification is out of the question in my view,” another person wrote:
To be honest, do we not all overestimate the importance of the UPC in a Brexit scenario ?
If Brexit really happens, there is a long list of topics to be dealt with in negotiations and I sincerely doubt that the UPCA will be a “pawn” in this game.
There are thousands of issues more important to be negotiated. Law in general is just a part of those matters, IP is just a small part of the overall law package, patents a small part of the overall IP package and the UPCA just one part of the overall patent package.
I can understand that people having worked on this project for a good bit of their lives will stay optimistic.
But having already an EU project in IP, for which a solution needs to be found, i.e the EUIPO businesses, I sincerely doubt that anyone wishes to create another complicated “EU” project like the UPC with the UK leaving…
So a quick ratification is out of the question in my view…
Lots of attacks on the messenger ensued and here is just one which speaks about today’s meeting in the UK:
But, of course the Ah-No Nyms point of view as a German patent attorney is of no relevance. Of relevance is the political will in UK and remaining Europe. And in view of the politicians taking the decisions the UPC is already a main topic. For instance a government conference with British industry and other relevant circles has already been scheduled for Thursday, 14th of July. Maybe the UPC or better the patent package will be a cornerstone for the future economic relationship between UK and EU to avoid more damages from the referendum outcome than absolutley necessary!
“Our VCs wouldn’t spent a dime with the UPC even with the UK on board,” the following person wrote (obviously not part of Team UPC). “The UPC is dead in the water and all (academic) discussions are just there for saving face,” this person added. To quote:
Did you talk to any VC? Any SME? Anybody outside Europe?
Our VCs wouldn’t spent a dime with the UPC even with the UK on board.
Legal Security? Nope! – Does that mean we could loose the IP (=our investment) in ONE court that nobody knows how they are deciding (and by which exact rules)?!?
Really cheaper? Not unless you were suing in at least 2 countries.
Experinced Judges? No Brits, nobody who is or was employed at the EPO! Who shall fill in all the positions? In Europe nobody would want to have German judges sitting everywhere.
SPC? Don’t even start!
True European? Nope, at least Britain, Switzerland and Spain are missing from the “imoportant” or “big” countries.
South Korean colleagues were already asking on how to file national again…
So what money wants to ratify? Which industry?
Even Pharma was like “Well, we might test the sytem with one or two less important families”.
If one wants to promote “European Patents” cut the annual fees! They are what is responsible for the biggest part of the costs.
The UPC is dead in the water and all (academic) discussions are just there for saving face (and not having to confess to themselves that all that money and time was wasted).
“Trust me when I say that Pharm will not touch the UPC with a bargepole,” said the following person.
Trust me when I say that Pharm will not touch the UPC with a bargepole, irrespective of membership, location, or even tasty nibbles.
Those that say “we may test the system…” aren’t really part of the decision-making processes. Hence why they spend their time hob-nobbing at conferences on the UPC.
Only a fool would put their pharma eggs in the UPC basket, irrespective of the quality of the judges.
As we noted here in past years, the UPC would be especially attractive to patent trolls. No wonder publications that are funded by patent trolls (like IAM) push for the UPC. They can attack thousands of European firms in one fell swoop (low cost, no brand/name to damage in the process). What good would that do to Europe? This patent and litigation bonanza would be useful to patent lawyers, no doubt, but at whose expense? Here is another comment:
Yes I have spoken to those outside the UK – and found the greatest interest outside Europe to be from the USA, particularly from CFOs of small to medium sized companies who want as big a portfolio as they can at the lowest price.
Lawyers tend to be cautious, but those who control the purse strings seem enthusiastic.
I started as an extreme sceptic on the UPC/UP package, simply because there is so much that is wrong with it. A better system could have been devised, but a better system might not have achieved the political impetus for agreement.
However, by talking to some of those who control the purse strings, I have become convinced that there is a real demand. Buy four, get perhaps 20 free, is a message that stirs the accountant’s soul (if they have one).
Referring to “Meldrew” (an attorney), the following expressed similar views on why the UPC is not at all necessary:
I can second Meldrew’s information. Most of the US companies are happy to exchange having to go to several separate European courts (all of these unknown to them) to one central European Court (also unknown to them).
Also on a European level the interest for the unitary patent and the UPC is large and although some may choose to opt-out from the start, many will trust the experience of the UPC courts (which next to British and German judges will also have experienced French, Austrian and Dutch judges).
I further agree with Meldrew that indeed the UP and UPC system may have been better. But this was the best we could get it at this moment and along the way I have become convinced that it will be a workable system and better, much better than what we currently have.
The negativism towards the UP and UPC reminds of old times at the start of the EPC, when everybody was negative and wanted to keep with the old national system. Or, if you want a stronger comparison, at the time of the introcution of the car or the train or any technological development. People tend to be quite conformistic and don’t want a change. I predict here, that if the system starts, after ten years everybody will say that it has been an enormous success.
Lastly, to come back to the above discussion on Brexit, or rather UPC-exit negotiations: to my opninion it is better to start the system as soon as possible and only when it is running discuss the exit of the UK. Otherwise we will run the risk that the whole UPC will be re-negotiated, which probably effectively will mean that it will be impossible again to come to an agreement.
The bottom line here is that the UPC is not needed (except for the sake of those who invested in its passage), the UK is unlikely to ratify it (because of Brexit at the very least), and UPC might never become a reality anywhere in Europe because it was drafted with London in mind and this whole house of card is now falling.
The unworkable, irreparable mess (or unmitigated chaos) which is now known as “UPC” was never designed with Europe in mind. It was designed with Team UPC (its creators) in mind. Time to abandon it and move beyond this defunct effort at patent regime change. The public now knows too much to allow it to pass behind closed doors by gullible and/or corruptible politicians. █
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Posted in Courtroom, Europe, Law, Patents at 2:44 pm by Dr. Roy Schestowitz
EPO management even lies to EPO staff about its rulings, which are based on highly dubious proceedings
Today’s news
February 2016
Summary: Hearings in The Hague begin (or resume) tomorrow, but whatever the outcome may be, Team Battistelli arrogantly reminded us that it would refuse to respect rulings from the highest court at The Hague, much like China’s government
THE links in yesterday’s daily summary (we posted two summaries yesterday) contain a couple dozen stories about China refusing to honour a ruling from The Hague. Maybe it’ll be a convenient subject for discussion on Battistelli’s next SIPO journey as the EPO too ignores The Hague, except when it comes to setting up branches near The Hague. EPO management is about to go on trial again (Supreme Court) and according to this report it will begin tomorrow. SUEPO is understandably quiet as preparations are required.
Lawlessness at the EPO has become the standard. Laws and rules are habitually broken (even by the President himself), external trials are snubbed, independent judges are crushed, and internal ‘justice’ uses bogus or fabricated evidence in order to implement anything the President asks for. Writing about the immunity of Battistelli, one person shared the following:
Indeed, no. He even enjoys more immunity than “us employees”, as he gets full diplomatic immunity according to the Vienna agreement… Even from his sending state, as all member states must accord it to him….
The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda. They can remove topics, add topics, change the order. But only with majority vote. (The AC approves the agenda.)
The topics as preliminary published and set by the president is therefore a mere proposal and non-binding to anyone.
“The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda,” says the above. But they quite evidently did not. Battistelli has managed to totally distract everyone from the abuses for which he and his goons come under fire from courts at The Hague. Who needs immunity when one controls the agenda of a meeting that only takes place 4 times a year? The game is rigged. Writing about the “outmanoeuvred” hypothesis (Battistelli manipulating the Administrative Council), one person asks: “Really? With only one vote against (NL) and two abstentions (HU, IT)? C’mon…”
This serves to show just how rigged it all was. They didn’t even discuss the pressing issues like Battistelli’s abuses and demands from Battistelli. Later on a debate developed around whether Battistelli got what he wanted or not. It went like this:
…the latest amended document isn’t perfect, but it is a million miles from what Battistelli wanted.
He’s presented three or four proposals over the last 18 months. Each time the AC has told him to go back and think again. That’s why it has taken so long.
Remember that originally BB had planned to ask the AC for a final decision way back at the March 2015 AC meeting. But then the controversy over the house ban of a BoA member blew up, so he realised that he wasn’t going to get all his own way. So instead of a final decision, he merely asked the AC for an opinion on CIPA’s suggestion that he should delegate powers to a new President of the Boards of Appeal. (Do you really think that BB liked the idea of delegating power to someone else?)
Further proposals followed, but weren’t good enough. Eventually, in February/March this year there was a huge bust-up, where the AC told BB that his proposal was still not acceptable, so Board 28 would tell him what it should say. Even then, during the June AC meeting they further amended what he had produced.
Of course, on each occasion BB’s PR machine has issued a communique on the AC’s behalf, saying that the AC was extremely happy with his proposals. But do you seriously believe everything you read in official communiques?
One person asked, “could it be that BB [Battistelli] is creating side-shows about issues that really do not matter that much to him” or distracts from abuses against his staff? Here is the full comment:
I fear that your comments rather reveal what I was most afraid of, namely a perception amongst some representatives to the AC that it is enough that BB has been battered back from his (apparently) preferred position on certain issues.
Let me be clear: avoiding an even more ridiculous alternative can hardly be counted as a “victory” if the outcome is still ridiculous. Also, has the AC not considered that, if BB were being particularly cunning, he might well make all of his initial positions so ridiculous that what ends up being passed by the AC nevertheless still gives him (at least) what he had secretly hoped for?
There is also the possibility of “sacrificial pawn” tactics. That is, could it be that BB is creating side-shows about issues that really do not matter that much to him, simply in order to ensure that he keeps a free hand on the issues that are truly important? Having to make some small concessions on minor issues is not such a high price to pay for ensuring you achieve your ultimate objectives.
I now understand more about how events have come to pass, but that additional knowledge has done nothing other than give me less cause for optimism. This is because my worst fears have been confirmed: the President really does control the agenda and is making fools of the representatives to the AC who oppose him. Also, with seemingly total immunity, it seems that the President really has nothing to fear… not even committing acts that, if judged under national laws, might land him in jail.
I really hope that there is someone out there who can figure out a way of fixing this, because I fear that there is worse to come for the European patent system if BB is neither jettisoned nor brought to heel.
The following comment said that the “latest outcome” is what Battistelli “wanted all along” as the appeal boards lost their independence (the EPO lied about it).
sorry but I can’t agree that the latest outcome is what BB wanted all along. I fear you have been taken in by his constant propaganda that the AC thinks he is wonderful and accepts everything he says.
All you can really say is that the AC could have done more on some of the issues. But viewed objectively, while the outcome is not perfect, neither is it favourable for BB.
The debate missed the point that Battistelli controls people by appointment now. The latest comment said this:
Can you really claim to know what BB wanted all along? I am not saying that I can either, but the point that I was making is that his tactics may be a lot more manipulative than is currently perceived. Perhaps, unlike me, you have not had your eyes opened to the fact that there are some individuals out there who will make a huge fuss (and fight tooth and nail) about an issue that really is of little consequence to them, simply in order to improve their negotiating position on other points.
From my perspective, the conclusion that “neither is it favourable to BB” just does not cut the mustard. I would instead have preferred a sane and sensible reform of (the rules of conflict of interest for) the Boards of Appeal – whereas the reform that we got does not meet either of those criteria.
Compromise is of course a very “European” way of doing things, and is no doubt essential in fora such as the AC. All I am saying is that just realise when you are being played – and when it is time to stand up to bullying behaviour and draw a line in the sand that shall not be crossed. Breaching provisions of the EPC and making threats to the EBoA really ought to have been such a line.
“Breaching provisions of the EPC and making threats to the EBoA,” as the above put it, are just two among dozens of Battistelli abuses. In tomorrow’s hearing only few among these will be considered by the court. If Battistelli was found guilty for only one of those dozens of abuses, he would not obey the ruling. That would only further embarrass the Office. █
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