06.28.16

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New Efforts to Work Around Barriers to UPC in Light of ‘Brexit’; Behind These Efforts Are Self-Serving Patent Profiteers

Posted in Europe, Patents at 12:58 pm by Dr. Roy Schestowitz

The antidemocratic villains that attack Europe’s interests are not only politicians but private firms like patent lawyers’ firms (the patent microcosm)

Bristows EPO

Summary: A look at who’s trying to work around the latest barriers to the widely-unwanted (by the public) Unitary Patent regime and what is being planned behind the scenes, or behind closed doors (by and for those who stand to profit from the Unitary Patent regime)

THE EPO‘s management is on fire, albeit it remains to be seen if Battistelli gets fired, resigns, or just jumps out the window to avoid the embarrassment (too much personal pride).

The UPC, which Battistelli has promoted for many years (before it was even called “UPC” or anything “unitary”), might never become a reality, unless it’s renamed again or some truly dirty tricks are used in a desperate effort to salvage it. Over at Juve today, Battistelli’s dire situation is explained (translations welcome), again courtesy of Mathieu Klos with his good knowledge of the EPO scandals/situation (along with his colleague, Christina Schulze).

Earlier today an anonymous article was published by The Register (using a Kat-themed pseudonym). It says UPC “could be derailed”, but “could” is an understatement. To quote the article (comments mostly focus on the EU, not the UPC or EPC, so these are quite worthless):

Europe’s UK-backed Unified Patent Court ‘could be derailed’

Europe’s multi-million-pound Unified Patent Court could be derailed entirely following the UK’s decision to leave the EU.

The court was planned to open in 2017 and was intended to hear cases regarding infringements of European patents across EU member states.

Only full membership of the EU allows countries to participate in the system, designed to simplify the application of patents across the continent.

However, now the UK will no longer be part of the European Union, fears are growing that the entire programme will cease to be an attractive proposition to patentees.

One insider remarked: “The entire system is reliant on the UK being part of the project. All parties are currently working to rescue the UPC.”

France, Germany and UK were due to ratify the agreement, with those three states having covered all of the programme’s set-up costs. The overall cost to the UK alone is thought to have run into millions of pounds, with investment in technology, hiring policy folk, and a newly-opened dedicated UPC court in central London.

Some have already pointed out that the court will be in limbo and that the entire system will almost certainly be delayed as the UK is one of three key countries needed to ratify the project.

As one might expect, the UPC cabal won’t give up without a fight. One separate thread in IP Kat said: “Nice to see that the EPO president found time to post about Brexit, although it is an EU issue and concerns only the EU patent, but has not made a comment on the EBA matter concerning interference or not with the highest legal body of the EPO. Symbolic? Politics over legal?”

It’s no secret that patent lawyers are drooling over and longing for the UPC. They want more ‘damages’, lawsuits, injunctions/embargoes and so on. The other day Mari Korsten of NLO wrote about “patent rights enforcement in Europe through a single action” and said “Unitary patent opens up easier way to implement customs seizures” (to whose benefit?).

“…the other side will have rewritten the UPC deal in 6 days time.”
      –Benjamin Henrion
The UPC may never become a reality after 'Brexit' and UPC proponents seem to be upset at Battistelli at the moment. Bristows, the loudest UPC propagandists and conspirators (recall what "expert teams" are in the context of UPC) worry about Brexit because of their investment in the passage of this antidemocratic package. IBM’s Manny Schecter (software patents proponent) asked himself: “Is Brexit the historic beginning of the end of the EU? Will others follow? Is true Euro patent system unification dead or just delayed?”

A patent lawyer wrote: “Looks like: (1) delay of Unified Patent Court; and (2) reduced harmonization of IP. Not good for IP owners.”

Nonsense. It might not be good for patent lawyers, but science and technology need no such package. Will this package change its name and marketing again? Back to “EU” or “Community”? Maybe EPLA? Will EU membership no longer be a prerequisite all of a sudden? Will the whole dependence on the UK be suddenly hidden under a rug? As Bejnamin Henrion put it the other day, “the other side will have rewritten the UPC deal in 6 days time.”

Henrion works closely with some UPC experts, so maybe he knows something that most people do not. A politician from Iceland (and famous Wikileaks contributor) Jónsdóttir, whom we mentioned here before in relation to software patents or other topics, said “Brexit is a wake up call. Changes need to happen. This crisis is a chance for real change within the EU. Ppl want to be heard & empowered.”

“Patent hackers are already busy trying to fast-track UPC ratification by the UK…”
      –Benjamin Henrion
UPC is one example of democracy being stomped on and Henrion said “rumours are already saying the ministries are already preparing amendments to the Unitary Patent Court.”

Team Battistelli and Team UPC might already be working around the rules to impose their will on everyone, undemocratically of course. “Philips Leo Steenbeck (EPLA proponent),” wrote Henrion, says that “UPC patch can be done at next Council meeting” (very soon). “The comment is very interesting and apparently comes from Philips,” Francisco Moreno added (he too knows quite a bit about the UPC). Well, apparently they decided what’s “better” for Europe (i.e. for multinational billionaires), so they’ll shape the law accordingly. As Henrion put it: “Patent hackers are already busy trying to fast-track UPC ratification by the UK” (it may take a while before Article 50 is invoked).

Here is one of the UPC pushers heralding this new article titled “scenario discussed to save the Unitary Patent system” (in light of ‘Brexit’):

How to save the Unitary Patent project? As soon as the outcome of the UK referendum on a Brexit was known, discussions started behind the scenes about ways to adapt the Unitary Patent system so the UK can stay in.

According to Wouter Pors of Bird & Bird, a new scenario has come up to enable the UK to participate in the Unified Patent Court and even in the Unitary Patent. If the UK ratifies the UPC Agreement, they can continue to be a participant even if they leave the EU. This only requires a small change of the Agreement by the Administrative Committee to open up accession for former EU Member States, being the UK.

The obligation to apply Union law, which is in the Agreement, needs to be met by the Court, but is not imposed on a non-EU Member State. The UK wants to participate in some kind of European Economic Area Agreement anyway, and in that case the CJEU would also have jurisdiction over legal issues relating to the internal market, so this is not much different. Besides, during the first 14 years the UK Courts would of course have jurisdiction over traditional European patents anyway, next to the UPC.

“The later the UK triggers Article 50,” Henrion wrote, “the better. At least the EU sausage machine of producing EU laws will slow down for a while.”

“At least the EU sausage machine of producing EU laws will slow down for a while.”
      –Benjamin Henrion
Red Hat’s Jan Wildeboer, who has campaigned against software patents in Europe for a long time, said that “Brexit Task Force and Article 50 Task Force created in Brussels. Article in German.”

“Not triggering Article 50,” he added, “is the UK elite showing The Finger against their own people and the rest of the EU.”

“Brexit Task Force and Article 50 Task Force created in Brussels.”
      –Jan Wildeboer
There is somewhat of a dilemma here actually. Article 50 being triggered would possibly help the UPC (a matter of un/certainty) and whether a package like UPC, which is inherently antidemocratic, becomes a reality is another matter worth pursuing in light of all these discussion about ‘democracy’ (whether British democracy or EU democracy).

“Italy to replace the UK as the third biggest UPC nation needed to enter into force,” Henrion wrote. “We will need to reform a coalition there.”

“Milan could get UPC Court,” one person wrote this week, “after Brexit” (Italy actually antagonised the UPC for a long time).

Watch what IAM wrote a short while ago, citing Bristows (the above-mentioned UPC conspirators). “Today,” it says, “the Eerste Kamer approved the bill to enable the Netherlands to ratify the UPC Agreement” (fast-tracking in a panic much?). Here is the cited paragraph. Bristows is hardly even trying to hide its villainous role in this whole terrible deal.

We might soon work towards an EU-wide campaign against the UPC. It needs to be buried once and for all (along with incarnations and predecessors). Not even EPO staff seems to want it (layoffs assured).

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