10.05.15

Gemini version available ♊︎

Dr. Ingve Björn Stjerna Explains Why the UPC (“Unitary Patent“ System) is an Undemocratic Sham Whilst UPC Silently Advanced by Patent Lawyers and Politicians

Posted in Europe, Patents at 6:44 am by Dr. Roy Schestowitz

The international community, including the British and European communities but excepting international corporations, their patent lawyers and politicians whom they shrewdly lobby, is intentionally being kept in the dark

Manchester Community College
Manchester Community College at night

Summary: European patent laws are being covertly overridden so as to allow broader scope of litigation, higher financial damages, speedy injunctions, and even software patents; the European public is intentionally kept in the dark about it, hence kept unable to express scepticism or issue truly effective objections

WE recognise the fact that many of our readers these days work for the EPO. It is a European institution where secrecy prevails as it helps impede outside scrutiny (which is sorely needed). Other European institutions favour secrecy for the same reason (e.g. so-called ‘trade’ agreements). We started writing about the EPO because of lobbying for and emergence of software patents in Europe, well before the UPC (with prior names in the McCreevy and Barnier days) that ushers them in. As a software specialist myself, this affects me personally; as an activist, I know this affects many others, and not just in Europe. It is a huge injustice and it can potentially become a lot worse. Action right now is imperative because lobbyists are pushing very hard for the UPC and they try to shape it; this includes monopolists like Microsoft (based on last week’s Bloomberg report) — those that aren’t even European, let alone people (corporations are not people).

Dr. Ingve Björn StjernaSeveral weeks ago we wrote that "EPO Managers, Patent Lawyers, Commissioners and Other Non-Technical Personnel Tackle Democracy, Alter Laws in Bulk and in Secret". Dr. Ingve Björn Stjerna (shown to the left) has since then sent us two links, noting that he wrote about this subject in his reasonably recent papers. “I just read your above-mentioned blog post,” he wrote to me. “Specifically with regard to transparency and democracy in the UPC context, do you know my papers “Law-making in camera” (accessible here) and “The sub-sub-suboptimal compromise of the EU Parliament” (accessible here) from 2013? Having a look might be worthwhile.”

I spent this weekend going through his papers and I warmly recommend that every single EPO employee does the same. They’re informative and not too lengthy. The topic is relevant and timely. It’s not an externality; the overall outcome is the direct impact of those who are involved in the patent ‘industry’; it’s all about protectionism for corporations and it is against democratic values. It is antithetical to the core values of Western nations.

“It is antithetical to the core values of Western nations.”The author, whom we mentioned here earlier this year, describes himself as “Certified Specialist for Intellectual Property Law [from] Düsseldorf” and the abstract of his first paper about it [PDF] states: “As it is well known, the “unitary patent“ package has been adopted and now the ratification of the inter-governmental Agreement on the court system by a certain quorum of the Member States is necessary for the “unitary patent“ system to enter into force. Less well known is the fact that, during the legislative process, circumstances were withheld from the public which the political front apparently regarded as dangerous for the entry into force of the “legislative package”. An exemplary case is Council document 15856/11, an opinion of the Council’s Legal Service on the compatibility of the “unitary patent” court system’s amended structure with opinion 1/09 of the European Court of Justice (CJEU). Until very recently, this document was available to the public only in extensively blackened form. Requests for complete access to the document filed on the basis of EC Regulation No 1049/2001 were repeatedly refused on the ground that this could delay the ratification process in the Member States or even call into question the entry into force of the Agreement. The document, additional parts of which were made accessible to the public shortly before the publication of this article, shows why: In it, the Legal Service notes that the structure of the adopted court system may still violate European law. A report on the strange understanding of transparency and democracy exercised in the legislative proceedings for the “unitary patent” package.”

The second paper [PDF] has the following abstract: “As is well known, in its meeting on 11 December 2012, the European Parliament adopted the so-called “patent package”, consisting of the Regulations on the “unitary patent” and the translation regime while agreeing to the conclusion of an intergovernmental Agreement for the creation of a “Unified Patent Court System”. The “unitary patent” Regulation is based on a compromise proposal of the (former) Cyprus Council Presidency which was discussed by Legal Affairs Committee of the European Parliament in a special meeting on 19 November 2012 from which the public was excluded. An audio recording of the meeting, which recently became available, shows the motives for the acceptance of this “compromise” which one of the rapporteurs called “sub-sub-suboptimal” and “a bad solution” there. The course of this meeting shall afterwards be described and assessed in more detail.”

“The so-called “patent package” is just another name for much of the same Trojan horse, which had various different names over the years (making it harder to find and grasp older criticisms thereof).”The so-called “patent package” is just another name for much of the same Trojan horse, which had various different names over the years (making it harder to find and grasp older criticisms thereof). Like with many secret ‘trade’ (corporate sovereignty) and censorship/surveillance bills, there is a notorious tendency to change the name of what’s being attempted (for passing), primarily in order to dodge negative associations and injurious publicity. These can be overnight stunts. Now it is known as UPC, but tomorrow politicians might decided to rename it again. Any politician knows this trick; another common trick is to wrap some piece of legislation or law with “pedophiles”, “terrorists”, “pirates”, and “drugs”.

Nobody (among the public) voted for the UPC but patent lawyers (as in “law”) ignore the law and rush ahead. To quote a British law blog: “The UK Government has now selected a location just on the edge of the City of London for the EU’s Unified Patents Court. This will house the London section of the Central Division, with specific jurisdiction in the life sciences areas, a major contributor to the UK economy. With this decision the Unified Patents Court looks one significant step closer to being a part of IP strategy for all innovative businesses wishing to do business in Europe.”

To quote another British law blog: “With the new court term looming, last week IPSoc, the society for junior IP practitioners, hosted its final educational event of 2015, “The UPC: A Panel Debate”. For those readers unfamiliar with the society, IPSoc is an intellectual property society run by juniors, for juniors (and for a nominal annual fee). The organization arranges four educational events, four social events and one fancy annual dinner each year for its members (which the AmeriKat was lucky to attend a couple of years ago).”

“Patent lawyers are understandably salivating over UPC (many more lawsuits with higher damages, from which they derive a loot’s share) and with very few exceptions they are constantly fast-tracking it, hoping for acceleration in a “self-fulfilling prophecy” fashion (increasing the complexity or cost of rollback).”Put in simple terms, AmeriKat (Annsley Merelle Ward, who likes to dissociate herself from her views), known to us for several years as IPKat‘s biggest software patents booster, pretends that the UPC is already in effect and is inevitably here. Patent lawyers are understandably salivating over UPC (many more lawsuits with higher damages, from which they derive a loot’s share) and with very few exceptions they are constantly fast-tracking it, hoping for acceleration in a “self-fulfilling prophecy” fashion (increasing the complexity or cost of rollback). They play a major role in giving momentum/inertia to politicians whose interests conflict with those of the public, which is mostly kept uninvolved (because it is uninformed, by design).

“The proposed Unified Patent Court fee for revocation proceedings is €20,000,” explains one patents-centric blog (of patent lawyers). “The EPO fee for opposition proceedings is €775. David Lewin expands on how and why you should be taking full strategic advantage of the EPO’s opposition procedure…”

To them it’s all about money. UPC means more power for large corporations and more money for lawyers who serve these corporations’ agenda (large clients pay the lion’s share of profit). At whose expense? European SMBs and European citizens at large. “And with it,” concludes the post, “completing the enhanced European patent system – will come the Unified Patent Court (UPC).”

Step by step they extinguish national sovereignty and abandon long-established laws, which were put there for a reason and evolved over time with public input and facts-based analyses (prioritising public interests, not private interests).

“This is the hallmark of an autocracy.”Why is UPC hardly mentioned in general news sites and newspapers? When did citizens ever vote on it, let alone been given the chance to vote on it (e.g. to oppose)? This is the hallmark of an autocracy.

“UPC will see major patent litigation,” explain patent lawyers, “which is resulting in a lot of ‘scaremongering’ going on” (well, obviously).

“EPLAW’s hon president Pierre Veron,” according to this, said that (probably paraphrased): “The first 4 or 5 preliminary injunctions under UPC will be issued quickly for legal certainty” (more injunctions, to whose advantage?).

Merck Sharp & Dohme’s James Horgan is quoted (or paraphrased) as saying that various “telecoms are most nervous about getting injunctions on preliminary actions under UPC [...] Opting out patents under UPC could be a ‘major headache’ [...] it won’t be patentees but law firms who shape the UPC system” (without even consulting the European public, which has nothing to gain from the UPC).

The patent lawyers are aided by their lawyer friends, who wear “politician” hats. “Ironically,” Managing IP (London-based) noted, “Commissioner EB [Elżbieta Bieńkowska] is from Poland – which has decided not to join the #UnitaryPatent (at least for now)!”

“It achieves the very opposite of competitiveness. It helps drive competition out of the market using patents.”Bieńkowska wrote: “Welcome Italy to #UnitaryPatent: a step further towards unitary protection of #innovation in Europe.#Competitiveness”

What is she talking about? It has nothing whatsoever to do with innovation and definitely not with competitiveness (the propaganda word used in europe.eu). It achieves the very opposite of competitiveness. It helps drive competition out of the market using patents. It harms European business. What was Bieńkowska thinking when she wrote this? Corporate tool or just gullible (or “useful idiot” as Stalinist Russia famously put it)? Other politicians, including some British ones like Lady Neville-Rolfe (Tory who fast-tracks/rams down the throats of Brits the UPC before consent is expressed or referendum takes place), are selling away democracy in Europe. It’s a horrible thing to witness, especially because many people don’t even know that this is silently going on. Passivity among the public, caused by lack of communication, drives the UPC. Managing IP joins the misleading “Competitiveness” chorus by writing: “EU Competitiveness Council to sign Protocol on provisional application of #UPC Agreement tomorrow http://www.consilium.europa.eu/en/press/press-releases/2015/10/1-compet-indicative-programme/ … (w/ Family photo!)”

The family of lawyers (politicians, patent lawyers etc.) is working hard to serve itself at the expense of European citizens, who are kept almost totally in the dark. Amid uncertainty and darkness, Germany, where much of the EPO is based, is now authorising software patents. To quote Patently German: “It is thus quite clear that the FCJ would not have accepted the patent application in its original wording, related to a mathematical method for the determination of the state of a (not further defined) object. Only the restriction of the method to the attitude determination of an airplane provides the required concrete technical application. Would the application also be allowed if the claims were directed not to the attitude determination of a real airplane but one simulated on a computer ? My guess is yes, it would, as in accordance with the rationale expressed by headnote c) of the decision a more reliable knowledge about the attitude of an airplane and thereby influence on the functioning of the attitude detection system (thus the relation to the purposeful use of forces of nature) is obtained also by performing the method of the invention on a flight simulator.”

German pundits say “on ruling by top German court” that “math method patent-eligible if related to using forces of nature” (that is essentially applicable to many if not most software patents, including those in my fields).

Welcome to ‘new’ Europe, where people have no say and corporations get anything they ask for. They even bypass European laws, or rewrite them in private to better suit their interests/convenience, driving competition out of the market and artificially driving up prices.

“They [EPO examiners] claim that the organisation is decentralising and focusing on granting as many patents as possible to gain financially from fees generated.” —Expatica, European Patent Office staff on strike

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 26/10/2021: Latte Dock 0.10.3 and Linux 5.15 RC7

    Links for the day



  2. Gemini Protocol's Originator: “I Continue to Care About This Project and I Care About the Community That Has Formed Around It.”

    'Solderpunk' is back from a long hiatus; this bodes well for Geminispace, which grew fast in spite of the conspicuous absence



  3. Bulgarian Like Bavarian Serfdom

    Bulgarian politics seem to have played a big role in selecting chiefs and delegates who backed Benoît Battistelli‘s unlawful proposals, which treat workers almost like slaves and ordinary citizens as disposable ‘collaterals’



  4. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League - Bulgaria

    Today we examine the role of Bulgaria in Benoît Battistelli‘s liberticidal regime at the EPO (as well as under António Campinos, from 2018 to present) with particular focus on political machinations



  5. Links 25/10/2021: New Slackware64-current and a Look at Ubuntu Budgie

    Links for the day



  6. Links 25/10/2021: pg_statement_rollback 1.3 and Lots of Patent Catchup

    Links for the day



  7. Microsoft GitHub Exposé — Part III — A Story of Plagiarism and Likely Securities Fraud

    Today we tread slowly and take another step ahead, revealing the nature of only some among many problems that GitHub and Microsoft are hiding from the general public (to the point of spiking media reports)



  8. [Meme] [Teaser] Oligarchs-Controlled Patent Offices With Media Connections That Cover Up Corruption

    As we shall see later today, the ‘underworld’ in Bulgaria played a role or pulled the strings of politically-appointed administrators who guarded Benoît Battistelli‘s liberticidal regime at the EPO



  9. IRC Proceedings: Sunday, October 24, 2021

    IRC logs for Sunday, October 24, 2021



  10. Links 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day



  11. The Demolition of the EPO Was Made Possible With Assistance From Countries That Barely Have European Patents

    The legal basis of today's EPO has been crushed; a lot of this was made possible by countries with barely any stakes in the outcome



  12. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League - North Macedonia and Albania

    We continue to look at Benoît Battistelli‘s enablers at the EPO



  13. Links 24/10/2021: GPS Daemon (GPSD) Bug and Lots of Openwashing

    Links for the day



  14. Links 24/10/2021: XWayland 21.1.3 and Ubuntu Linux 22.04 LTS Daily Build

    Links for the day



  15. IRC Proceedings: Saturday, October 23, 2021

    IRC logs for Saturday, October 23, 2021



  16. Links 24/10/2021: Ceph Boss Sage Weil Resigns and Many GPL Enforcement Stories

    Links for the day



  17. GAFAM-Funded NPR Reports That Facebook Let Millions of People Like Trump Flout the So-called Rules. Not Just “a Few”.

    Guest post by Ryan, reprinted with permission



  18. Some Memes About What Croatia Means to the European Patent Office

    Before we proceed to other countries in the region, let’s not forget or let’s immortalise the role played by Croatia in the EPO (memes are memorable)



  19. Gangster Culture in the EPO

    The EPO‘s Administrative Council was gamed by a gangster from Croatia; today we start the segment of the series which deals with the Balkan region



  20. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”

    The EPO‘s circle of corruption in the Balkan region will be the focus of today’s (and upcoming) coverage, showing some of the controversial enablers of Benoît Battistelli and António Campinos, two deeply corrupt French officials who rapidly drive the Office into the ground for personal gain (at Europe’s expense!)



  21. Links 23/10/2021: FreeBSD 12.3 Beta, Wine 6.20, and NuTyX 21.10.0

    Links for the day



  22. IRC Proceedings: Friday, October 22, 2021

    IRC logs for Friday, October 22, 2021



  23. [Meme] [Teaser] Crime Express

    The series about Battistelli's "Strike Regulations" (20 parts thus far) culminates as the next station is the Balkan region



  24. Links 23/10/2021: Star Labs/StarLite, Ventoy 1.0.56

    Links for the day



  25. Gemini on Sourcehut and Further Expansion of Gemini Space

    Gemini protocol is becoming a widely adopted de facto standard for many who want to de-clutter the Internet by moving away from the World Wide Web and HTML (nowadays plagued by JavaScript, CSS, and many bloated frameworks that spy)



  26. Unlawful Regimes Even Hungary and Poland Would Envy

    There’s plenty of news reports about Polish and Hungarian heads of states violating human rights, but never can one find criticism of the EPO’s management doing the same (the mainstream avoids this subject altogether); today we examine how that area of Europe voted on the illegal "Strike Regulations" of Benoît Battistelli



  27. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group

    The EPO‘s unlawful “Strike Regulations” (which helped Benoît Battistelli and António Campinos illegally crush or repress EPO staff) were supported by only one among 4 Visegrád delegates



  28. [Meme] IBM Has Paid ZDNet to Troll the Community

    Over the past few weeks ZDNet has constantly published courses with the word "master" in their headlines (we caught several examples; a few are shown above); years ago this was common, also in relation to IBM itself; clearly IBM thinks that the word is racially sensitive and offensive only when it's not IBM using the word and nowadays IBM pays ZDNet — sometimes proxying through the Linux Foundation — to relay this self-contradictory message whose objective is to shame programmers, Free software communities etc. (through guilt they can leverage more power and resort to projection tactics, sometimes outright slander which distracts)



  29. [Meme] ILO Designed to Fail: EPO Presidents Cannot be Held Accountable If ILOAT Takes Almost a Decade to Issue a Simple Ruling

    The recent ILOAT ruling (a trivial no-brainer) inadvertently reminds one of the severe weaknesses of ILOAT; what good is a system of accountability that issues rulings on decisions that are barely relevant anymore (or too late to correct)?



  30. Links 22/10/2021: Trump's AGPL Violations and Chrome 95 Released

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts