03.12.17
Germany Cannot Ratify the UPC Because Britain is Leaving the EU and Unitary Patent Strongly/Strictly Depends on the UK
Unless they went back to the drawing board and restarted all the negotiations, with Britain ruled out and the UPC being something altogether different (maybe renamed, too)…
U.P.C. is the new U.F.O.
Summary: The chorus of the German patent microcosm and Team UPC, including several IP Kat writers, who collectively in their echo chamber want to believe — and also to convince all of us — that the UPC will be ratified in Germany “real soon now!” (but no, they cannot without the UK changing its mind on “hard Brexit”, amongst other tall barriers and legislative obstacles across Europe)
THE source of many deliberate lies, the EPO, continues to amaze us with its incredible lobbying push for the UPC. It’s not only expensive but it also corrupts European media and harms its reputation (e.g. fake news, which we have just learned is spreading to Spanish media). Previously in this evening’s series we summarised the past week’s developments as follows:
- Fake News From the EPO and Team UPC About Unitary Patent in the UK in Spite of Brexit
- No, Spain is Not Joining the UPC, That’s Just What UPC Lobbyists Want Everyone to Believe
- British Site ‘Managing IP’ Continues to Organise UPC Lobbying Events to Promote the Unitary Patent in the UK, Isle of Man, Maybe Even Ireland and Beyond
Now it’s Germany’s turn. That’s like the heart of this monster, not just the EPO’s but also the UPC’s. There are probably veiled reasons behind Maas refusing to enforce the law against Team Battistelli. With the UPC, unlike with the US patent system (which includes the notorious state of Texas, capital of litigation), there is federalism and fragmentation. Countries like the UK, Poland, and Spain (very large countries) still seem far from joining or being assimilated to the Borg, so to speak. Don’t believe the fake news and the hype from Team Battistelli and Team UPC. They have a long track record of lying and they have already shouted “Wolf!” more than thrice.
“It’s not only expensive but it also corrupts European media and harms its reputation (e.g. fake news, which we have just learned is spreading to Spanish media).”So, what’s the deal with Germany? Not much. Team UPC, Bristows for example, toes the party line. A day ago, on a Saturday, Richard Pinckney said that “German parliament passes two bills required for UPC ratification” and he hopes to give the impression that Germany’s ratification is now imminent and inevitable. But it’s not. Germany won’t ratify as long as the UK does not (and it cannot!).
Watch tweets from UPC proponents who repeatedly use terms like “green light”. This is all conditional, contingent upon lots of things. Citing the Bundestag’s site, this person says “German #Bundestag gives green light to #UPC. Actual #ratification to happen later.”
Look at the certainty. Here is another tweet to that effect: “Lower House of German Parliament #Bundestag has given green light to implement #unitary #patent in Europe”
What do they even mean by green light? Something like Chinese government officials giving the green light for Siemens to relocate to China. It doesn’t mean it will actually happen.
“Don’t believe the fake news and the hype from Team Battistelli and Team UPC. They have a long track record of lying and they have already shouted “Wolf!” more than thrice.”A pro-UPC account (“UPC tracker”) said “Bills providing basis for ratification of UPC passed unanimously by DE Bundestag. Speaker: “doesn’t happen often.””
Well, how often does one vote on UPC? Only once.
Talking about the FFII, Benjamin Henrion urged for action in Germany when he wrote: “You wonder if it is useful to have a German association if no German don’t do shit when UPC goes through Bundestag…”
Alexander Esslinger (a.k.a. “patently German”) wrote: “This news will probably dampen rumors about Germany not ratifying #UPC due to some open questions in connection with Brexit” (not really, unless you are Esslinger, in which case the UPC is desirable to you).
Esslinger alludes to discussion among people from IP Kat (former writers). Birgit, as I told her, should know about this as a German working in the UK. Tufty wrote to her: “I’m suspicious of everything about the #UPC. It would make sense for DE to delay ratification until effect of #brexit is clearer.”
She had said that “all these suspicions… you Germany will still play the Article 50 waiting game? They could have stalled it yesterday?”
She also wrote “Let’s just hope the Bundestag calls the #UPC by its correct name… (not “unified software patent” or similar,” linking to this tweet from a dubious pro-EPO site. It says that “UK has signed the UPC Protocol on Privileges and Immunities ahead of its ratification of the agreement, but whether the country does ratify in the fallout of its vote to leave the EU remains to be seen.”
“What do they even mean by green light? Something like Chinese government officials giving the green light for Siemens to relocate to China. It doesn’t mean it will actually happen.”It does recognise that Germany depends on what happens in the UK. Time is running out for Team UPC (EU-wide) because of Article 50. They know what it would mean to the whole scheme when invoked in as little as weeks from now, so they resort to dirty deeds (like those covered here earlier this evening).
Here comes another UPC proponent, this one also from IP Kat, which never criticises the UPC and only ever promotes it (as recently as a week ago). So much for a ‘balanced’ blog, only ever sobbing if there’s a setback or lack of progress for the UPC.
Mr. Smyth, an occasional booster of the UPC (he does a lot to promote it), wrote: “New #UPC rumour – Germany may not ratify until result of Art 50 negotiations known. Could that be true? If so catastrophic #patentforum2017″
“Catastrophic to your employer,” I told him. “What about people who actually make stuff?”
“I honestly don’t believe that Jo Johnson cares about what’s good/bad for the UK e.g. UPC,” I added later. “Just like his brother on Brexit…”
It increasingly seems like Johnson does not care about legal aspects, either, as he cannot ratify the UPC and pray that it will miraculously survive after Brexit (or that they can ‘patch’ the UPC ‘on the go’ so as to ‘retrofit’ it to an untenable ratification). Might Battistelli pull that famous trick that involves money/gifts?
“Here comes another UPC proponent, this one also from IP Kat, which never criticises the UPC and only ever promotes it (as recently as a week ago).”The whole thing is insane!
“Making rules of procedure of a court with an administrative committee like for the UPC is undemocratic,” Henrion noted, and “against German Constitution….”
A couple of days ago Bristows said in its blog that “PPI will give legal personality to the Unified Patent Court and provide the Court and its judges, Registrar and other staff with the various privileges and immunities.”
How does the post-Brexit UK feel about such ‘freedom’ and ‘independence’ from the EU? This just serves to remind everyone out there how crazy this whole thing is. This would not only bring software patents to the UK from the back door (including litigation and enforcement from courts that don’t speak English!). It would also invite patent trolls from other countries and continents to the UK. All those Chinese companies with sloppily-granted EPs can do a lot of damage here if the UPC passes (not that it’s expected to happen, not in the UK anyway).
The loudest proponent of software patents in Germany asked FFII, “do you really think the #UPC will change anything for the #patentability of #software?”
That’s obvious. One has to be seriously misinformed and deliberately in denial about it to say the above. We covered this subject many times before, citing various luminaries and experts to support that assertion.
As Henrion put it, “yes, it will rubberstamp the insane EPO practice.” (the EPO grants software patents, unlike UK-IPO)
“The whole thing is insane!”Imagine what would happen if, instead of national courts (tied to NPOs like UK-IPO), the above-the-law EPO with its taste/savour for software patents gained prominence here. Imagine what would happen if the UPC ever gained a political foothold. Disaster!
Henrion concluded with, “the unitary patent is an ugly mixture of EU law and international law, not even an EU court [and thus] undemocratic…”
If at any point this month Johnson does the unthinkable and slips in a ratification (without even a debate in Parliament), there will definitely be protests. And if the UK goes ahead with Brexit before ratifying (as should be the case, as per the law), then all the above gossip about Germany is just a crazy pipe dream. █
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