02.07.16

Gemini version available ♊︎

UPC: To Understand Who Would Benefit From It Just Look at Who’s Promoting It (Like TPP)

Posted in Europe, Patents at 12:18 pm by Dr. Roy Schestowitz

Summary: The UPC, which is designed to aid patent trolls and aggressors (and their lawyers), is still being advanced by the EPO and some misinformed (but loyal to these former groups) politicians

THE Unitary Patent Court (UPC) is not a step forward but a step backwards. Here is what Glyn Moody (not a patent lawyer or a patent troll) made of the UPC last week, in page 6 of his very detailed article: “EPO’s spokesperson mentioned… [UPC] … as an important reason for revising the EPO’s internal rules” (the context being an attack on staff). Moody filed this under the section “Trolls get ready for the unitary patent,” alluding to a fact that we so often revisit here. The Unitary Patent would work quite well for software patents and for patent trolls, even from abroad. It would not be beneficial to Europe. In this post we explore some recent developments in the race towards UPC, where the main racers are patent lawyers and their biggest clients (large and rich corporations).

Jane Lambert recently had an online dispute/debate. It started with her saying: “Looking forward to my talk on the unitary patent and the Unified Patent Court at 17:00 today in chambers” (UK).

As I pointed out to her, the UPC is not about helping SMEs but about destroying them, by allowing Europe-wide litigation against them. Lambert, who is based in the capital of patent lawyers, London (later Honley), responded with: “I see the UPC as levelling the playing field between SME in the UK and the Mittelstand in Germany and rest of the continent. UPC litigation still much cheaper than litigation in England and Wales alone (see table on page 50 of http://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/d/contra_vision_ltd_336_p4_163kb.pdf)” (see with context).

“If one wrongly assumes,” I responded, “that: 1) more/broader litigation is good. 2) companies only sue, never get sued.”

“Cost of litigation never includes EU-wide damages,” Benjamin Henrion added.

It’s a matter of simple economics. The public interests should be factored in.

The matter of fact is, trying to explain this to patent lawyers, who make money from disputes, can be an exercise in futility. Lambert said “UPC makes sense in cost savings even for litigation between 2 UK companies over a European patent designating the UK.”

“Those same companies will easily get sued,” I replied, “by other companies from ~30 countries around Europe. Good for lawyers.

“UPC is a recipe for an epidemic of litigation. Good for patent lawyers, even FANTASTIC for them.”

Henrion then added that “litigating/defending patents is simply out of reach for most of small companies, upc or not http://ur1.ca/ogv4q”

He also asked, “patents are a moving target then?”

Lambert then said this was “better than their being sued in several jurisdictions for essentially the same cause of action. Good for business.”

They wouldn’t be sued like that because the incentive to sue is low. Less money for lawyers. At this point we soon realised that nothing would convince lawyers that the UPC is bad because the UPC is not bad for them. The patent lawyers want what’s good for patent lawyers and their biggest clients (income source).

Lambert later added that “that’s exactly what happens already and it’s the start-ups and other small businesses that suffer the most under present system,” to which I responded with: “Startups are the ones reluctant to sue, and UPC won’t improve that for them. It’ll make them the victim of MORE lawsuits.”

Lambert concluded: “yes it will. The costs of litigation will be so much less than in this country. It will also be easier to obtain IP insurance.” Lambert later added: “Fragmentation of Europe is an enormous barrier to innovation in EU.”

Fragmentation is not the right word. It wrongly assumes that patents need to be global or universal. This clearly isn’t the case. Well, generally speaking, the UPC — like TTP, TTIP, ACTA and more confusing acronyms the public isn’t intended to understand — are hinged on a big pile of Big Lies. They empower multinational corporations and attempt to convince the public that this is somehow better for everyone. The UPC is similar to ISDS in the sense that one helps large businesses sue lots of businesses in one fell swoop. The latter lets them sue nations.

Wouter Pors, a patent lawyer whom we mentioned here several times before, was recently quoted as saying: “Wouter Pors @ #UPP2016 on strategic use of #UPC and #unitarypatent: strong patents more suitable to opt-in?”

When patent lawyers say “strong patents” they don’t mean strong innovation, it’s all about strong (high) profit for strong (rich) companies. Economists are needed here, but not ones who are funded (salaried even) by the EPO. As one shrewd comment put it the other day regarding the EPO’s new French economist (we shall write about that more in a separate article):

Perhaps Yann can turn his attention to the financial impact of the UP upon not only the EPO, but also European businesses?

Darren’s amusing piece (hypothetical discussion with a client) from 20 April 2015 points to reasons why the level of the official fees levied means that advent of the UPC might not be beneficial for all – particularly SMEs.

However, in addition to the issue of official fees, that is the equally important issue of advisory fees.

A little bird tells me that national governments may well be relying upon Article 149a to sanction what would otherwise amount to contraventions of Articles 2 and 64 EPC – i.e. to allow national patents, non-unitary EPs and unitary EPs to all have different effects when it comes to infringement.

On top of this, we have the possibility (now seeming much more like a certainty) that different Participating Member States (PMSs) of the UPCA will have different national laws. Thus, it seems that the process of determining whether a patent application that is eligible for unitary protection will be infringed by actions in country X will now comprise the following steps.

1. Has unitary effect been requested?
2. If so, who was the original applicant?
3. Did the (an) original applicant have a residence / place of business in a state that is a PMS for the unitary patent concerned?
4. If so, determine the applicable national law under Art. 7(1) and (2) of Reg. 1257/2012 (and if not, the applicable law is that of Germany).
5. Seek advice from an expert of the national law determined under step 4.

This is a much more complicated and expensive procedure for determining infringement than we have under the current system. And things just get worse if you are trying to determine freedom to operate in country X and you have identified several potentially relevant patent applications. This is because:
- the above, 5-step process will have to be repeated for each application;
- different applications may have different applicants (giving increased burden for steps 2 to 4) and may therefore be subject to different national laws (giving significantly increased costs in step 5); and
- it will not be possible to provide a definitive answer for step 1 until up to 3 months after the date of grant of the application concerned.

The last point could be particularly galling for clients. This is because it could mean that, whilst they will have to bear the burden of significantly increased costs for FTO, they will be presented with an equivocal conclusion (as there can be no certainty until well after grant of all of the relevant applications).

This might all be OK if the differences between national laws was such that the conclusions would be essentially the same under all potentially relevant laws. But that is certainly not how things appear to be shaping up for indirect infringement and, crucially, for “Bolar” / experimental use.

Will all of the above in mind, any comprehensive analysis of the economic impact of the UP system really ought to take account of the “hidden” costs of advice. If this is done, then I believe that there is certain to be a negative impact upon at least some (if not most) European companies.

Here is another new comment that alludes to the UPC:

I come back to your view, Madhouse, on what constitutes “examination” of patentability.

As we are now, the Enlarged Board of Appeal of the EPO is the commodore of all the ships in the fleet, the fleet I mean being the fleet of national Supreme Courts of the EPC Member States, when it comes to the substantive law of patentability in Europe.

But now we have a new Commodore, the UPC.

And if the UPC has put DG3 out to grass, why should the EPO attempt any longer to issue any decision at all on obviousness? Why should it ever refuse any application for a patent for the reason that the claimed subject matter, even if new, is clearly obvious. Why not save a ton of money and have it merely do a search and issue an advisory EESR opinion on obviousness, and leave it at that.

You know, like INPI does. And like the UK Patent Office used to do until 1978. Isn’t that the cost-saving, modern and efficient way to go? Is that not where BB is taking us all?

Right now we see all sorts of patent “professionals” (usually lawyers) encircling UPC critics like a group of vultures. They even have their own events in favour of the UPC (the EPO funds its own in participation with lawyers' firms). There are even some gullible politicians who are helping patent trolls and aggressive corporations from abroad harm Europe with the UPC, making foolish statements such as: “The new unitary patent will help Europe’s businesses to flourish” (the opposite is true).

“Enforce patent rights across EU with a single, streamlined proceeding may become very attractive to trolls,” Henrion noted, linking to a 2-page PDF on the subject (“MCC INTERVIEW: Dr. Christian Paul & Alastair J. McCulloch / Jones Day – EU Poised to Overhaul Its Patent System – New unitary patent and court are likely to shake up global patent dispute strategies”). This is cited by one of the sections below, which are precede by the following instruction: “On the heels of patent reform in the U.S., the EU is preparing to dramatically shift its approach to patent disputes. A new EU-wide unitary patent to supplement country-by-country patents and a new court system, with jurisdiction that makes it almost as big as the U.S. system, mean big changes ahead. In this interview, Jones Day patent litigators Alastair McCulloch, who leads the firm’s IP team in the UK, and Dr. Christian Paul, who is qualified as a lawyer and graduate chemist in Germany, discuss the likely impact of the new system and what Jones Day is doing to prepare clients for the changes ahead.”

A lot of politicians have a very twisted version of the UPC in mind because they’re being lobbied/greased up by patent lawyers and their clients. They seem to think that broader is better, just as they often think that more (e.g. patents) is necessarily better. Not just trolls but patent aggressors like Apple and Microsoft would benefit from patent maximalism, which augments scope and breadth, both in terms of domains covered and nations covered. Big businesses and their lobbyists, lawyers, paid politicians etc. are passing the UPC without any public debate or input, crushing anyone who stands in their way. The closest analogy we can think of right now is the TPP. Consider this new article titled “They promised us a debate over TPP, then they signed it without any debate” (published 3 days ago).

It says: “The Trans Pacific Partnership is a secretly negotiated agreement between 12 countries, including the US, Canada and Japan, which establishes punishing regimes for censoring and controlling the Internet, as well as allowing corporations to nullify safety, environmental and labor laws that limit their profits.

“The corporations and governments that backed TPP dismissed criticism of the secret negotiations process (even members of Congress and Parliaments were not allowed to know about the substance of the negotiations, though corporate lobbyists were), promising that there would be a “debate” after the TPP was finished (that is, when it was too late).

“Early this morning (US time), representatives of 12 countries gathered in New Zealand to sign TPP. We never got the debate.”

Also see TechDirt‘s “Countries Sign The TPP… Whatever Happened To The ‘Debate’ We Were Promised Before Signing?”

“As we discussed yesterday,” TechDirt wrote the following day, “the TPP was signed by all participating countries yesterday in New Zealand (though there’s still a big ratification fight required to make it matter). We have lots of issues with the TPP, many of which we’ve raised over the years — but the first issue that drew our attention to it was the intellectual property chapter. For years, we’ve questioned how it could possibly make sense to include intellectual property in a so-called “free trade” agreement, as intellectual property is the exact opposite of free trade. It’s a government granted monopoly and restriction on the movement of information. And, yet, in the past two decades, basically any international trade agreement has included sections concerning intellectual property.”

The EFF subsequently wrote: “Top officials of countries involved in the Trans-Pacific Partnership (TPP) are convening in New Zealand today to sign the final agreement. But really this ceremony is just a formality. We knew since November, from the day they announced a completed deal and made the text public shortly thereafter, that they would do this. These officials have not been accountable to the public. They have remained steadfast in excluding public participation and ignoring all calls for transparency over the more than five years of TPP negotiations. Because of this opaque process, trade negotiators were able to fill the agreement with Hollywood and Big Tech’s wish lists of regulatory policies without having to worry about how they would impact the Internet or people’s rights over their digital devices.”

According to the press in New Zealand:”Protesters in Auckland were estimated at more than 5000 at their height and a rump gathered outside SkyCity for several hours after the signing.”

Politicians who represent mega-corporations, i.e. not people, want the TPP to become a reality and the same typically goes for the UPC. Here in the UK the government treats ‘IP’ as a matter of threat. MIP connects this to the UPC as follows: “Purpose of reform includes Unitary Patents The existing law is said to be inconsistent (especially with the civil pre-action procedures) potentially harmful to competition and unclear. The reform seeks to harmonise the law across the relevant IP rights and will be extended to Unitary Patents and European patents…”

When the EPO, patent lawyers, politicians who promote the interests of large corporations and so on call for immediate introduction of the UPC we must remember their motivations. This has nothing whatsoever to do with Europe’s interests or even science and technology. It’s to do with power and domination by a bureaucracy or international oligopolies/monopolies, which often depend on this bureaucracy. It is a power grab.

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 25/05/2022: ‘V Rising’ on GNU/Linux and Pearl Linux OS 11

    Links for the day



  2. Links 25/05/2022: Librem Tries Another Approach

    Links for the day



  3. IRC Proceedings: Tuesday, May 24, 2022

    IRC logs for Tuesday, May 24, 2022



  4. Links 24/05/2022: nginx-1.22.0 and WordPress 6.0

    Links for the day



  5. [Meme] Divine Protection

    You won’t find Monopoly Tony (António Campinos) wearing a mask at the EPO because the rules of the Office do not apply to him



  6. António Campinos and the Alicante Clique (EPO Management, Appointed Based on Nepotism Despite Lack of Qualifications) Nowadays Exploiting Kids for PR Charades

    The sick old habit of exploiting kids for Public Relations (PR) and marketing purposes is all too common at the EPO (they’re constantly exploiting “the children” to associate criticism of the EPO with demeaning the young and innocent), but the management — which enjoys nepotism and immunity rather than relevant skills — carries on today and it’s being called “inaugural”



  7. [Meme] Snake on a Plane

    The EPO‘s President ‘Monopoly Tony’ (António Campinos), whom you never see wearing a mask (none of the photo ops; he does not even socially distance himself from peers, he wears sneakers instead of masks) during the height of a pandemic, is the "f***ing president"; don’t tell him to wear one…



  8. Microsoft GitHub Exposé — Part XX — Entering Phase II

    We're about to resume the long-running series about the sick clique which ran GitHub until the assault on women became too much of a liability (among other wrongdoings and PR blunders)



  9. Links 24/05/2022: Fedora 37 Test Days and Tor Browser 11.0.13

    Links for the day



  10. Microsoft Vidal, as USPTO Director, Already Plays 'Political Cards' to Disguise and Deflect Away From the Corporate Agenda

    Microsoft Vidal, another corporate pawn in charge of the world’s most dangerous patent system, is using soft-spoken defle



  11. Links 24/05/2022: WAL-G 2.0

    Links for the day



  12. IRC Proceedings: Monday, May 23, 2022

    IRC logs for Monday, May 23, 2022



  13. Unethical Advertising, Published as So-called 'Articles', in CNX Software

    As we noted earlier this year, the CNX team is looking for money in the wrong places



  14. Links 23/05/2022: Broadcom to Buy VMware?

    Links for the day



  15. LibreOffice Conference 2022, As Before, Puts the Keynotes on Sale (the Rich Buy Influence, the Price Doubles)

    Discrimination against the community; talks and mentions are based on money, not merit ($2000 has become $4000 in just one year)



  16. Links 23/05/2022: Kdenlive 22.04.1 and New Alpine Linux Released

    Links for the day



  17. António Campinos Promotes Software Patents Using Buzzwords and Sketchy Loopholes With Dubious Legal Basis

    ‘Monopoly Tony’ (António Campinos) is shamelessly manipulating EPO processes at both ends (sender and receiver) to facilitate the illegal granting of invalid European software patents; we’re meant to think this former EU official and imposter (banker) is some guru in the sciences because he reads a lousy speech crafted for him with lots of meaningless buzzwords peppered all over it (he’s not good at reading it, either)



  18. [Meme] Jorgotta Be Kidding Us, Campinos!

    Monopoly Tony (António Campinos) runs the EPO by attacking the very legal basis of the EPO’s existence



  19. Unified Patent Court (UPC) Relies Too Much on Lies and Mischief Without Any Basis in Law

    Today’s video runs through the typical (weekly) lies from Team UPC — lies that are very easy to debunk; Team UPC not only drafted the thing but also looks to profit from it while misleading politicians and bribing publishers to spread intentionally misleading statements (lies)



  20. IRC Proceedings: Sunday, May 22, 2022

    IRC logs for Sunday, May 22, 2022



  21. Links 23/05/2022: Fedora 36 Reviewed

    Links for the day



  22. [Meme] It's My Working Party... And I'll Cry If I Want to!

    EPO President António Campinos is still not being held accountable for his Code of Conduct violations



  23. Links 22/05/2022: The 5.18 Kernel is Out

    Links for the day



  24. Gemini is Bigger Than Most People Care to Realise

    Geminispace has gotten to the point where it's too computationally expensive (or outright pricey) to study, let alone keep abreast of, Gemini capsules or the domain space as a whole



  25. Links 22/05/2022: Rock64 and Peppermint OS Release

    Links for the day



  26. [Meme] UPC is Always Next Year (and Next Year It'll Surely be the Year After That)

    The UPC will come “next year”, just like every year (since almost a decade ago) just because the lunatic promises so and crushes the law, quite frankly as usual, cusioned and protected by the UPC lobby



  27. UPC: Turning Patent Lawyers Into Liars and the Media Into Their Money-Grabbing Megaphone (Platform for Fake News)

    The above 26 screenshots (with necessary annotation added) hopefully illuminate the degree of deceit, manipulation, bribery and distortion of public discourse (fake news and advocacy of patently unlawful activities)



  28. Number of Working/Online Gemini Capsules, Known to Totally Legit Gemini Search (TLGS) and to Lupa, Exceeds 2,500

    Assuming that Lupa reduced its crawling capacity (this graph seems to confirm this), we’ve decided to aggregate data from 3 sources and assess the size of Geminispace; Lupa says it can see 1,947 active capsules, but there are many more it has not kept track of



  29. [Meme] Monopoly Tony

    The gentlest, kindest president the EPO ever had



  30. It Took Campinos Three or More Years to Undo Illegal Battistelli Actions on Boards of Appeal and Strike Regulations (Only After Losing at ILO-AT!), But He Does Not Mention That

    Let’s all remember that as the EPO‘s so-called ‘President’ António Campinos (Monopoly Tony) vigorously defended completely unlawful actions of Benoît Battistelli until courts compelled him to stop doing that (Strike Regulations); notice how, in the video above — a portion of this full clip from several months ago — he did not bother mentioning that for 3.5 years that he had “led” the Office the Boards of Appeal were in exile, in direct violation of the EPC, yet nobody is being held accountable for it


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