06.11.17

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Bristows/IP Kat Still Promoting UPC and Patent Trolls, Also Accused of Deleting Comments and “Brown-nosing” Judges to Help Patent Trolls

Posted in Deception, Europe, Patents at 5:24 am by Dr. Roy Schestowitz

Sucking up to a judge who helps patent trolls’ entrance into Britain

Colin Birss

Summary: Bristows LLP spends far too much time infiltrating blogs and media in pursuit of patent trolls’ and UPC agenda, at the expense of integrity of the system and accuracy of information online (some of which it is deleting once it enters the editorial process)

FORGET anything you knew and saw about EPO scandals at IP Kat. As an EPO insider put it the other day: “Bear in mind that IPKat = Bristows mouthpiece as of recently. Both pro UPC !”

We actually wrote quite a few articles (such as this one) on this demise or ‘whoring’ (to the EPO) of IP Kat. It started when the blog’s founder left and accelerated further when “Merpel” (a pseudonym used by several people) simply vanished without a trace.

“It started when the blog’s founder left and accelerated further when “Merpel” (a pseudonym used by several people) simply vanished without a trace.”Bristows, sadly, has infected quite a few blogs other than IP Kat. One other example is Kluwer Patent Blog. Mind tweets such as this one, ignoring some of the latest UPC setbacks and going along with fake news from Bristows (regarding Bristows itself!)…

The following post does not state the name of the poster (maybe Cordery or a colleague from Bristows, in which case they reference themselves as a source with an even more misleading headline that constitutes pure lobbying). To quote a passage:

According to a Bristows report, Belgium, Denmark, France, Finland, Italy, Luxembourg, the Netherlands and Sweden meet these requirements. Also, ‘Germany and the UK have each consented to the Protocol. (…) it appears that other countries (such as Greece, Estonia, Lithuania and Slovenia) may be in a position to enable the Provisional Application Phase to start before the summer break.’

Estonia is mentioned above because Bristows is latching onto Estonia again, in a desperate effort to show signs of life (the UPC is otherwise in a limbo).

IP Kat is killing a decade’s reputation by letting Bristows exploit it like that.”It often seems like Bristows is everywhere when it comes to the UPC and it not only spreads lies but also deletes comments that are not convenient to Bristows, the private firm that betrays its own country. Here are Bristows’ Pat Treacy and Matthew Hunt promoting a case for patent trolls in the UK, found via IAM and via the Microsoft AstroTurfing group called ACT (pretending to represent small companies for about a decade now). Have they no shame?

IP Kat, having been ‘hijacked’ by Bristows (liars and censors), is also doing this. It’s now openly promoting patent trolls using this case. Remember that Bristows has high stakes in the UPC and it promotes patent trolls in the UK for self indulgence. Here it is being accused — in the comments — of “brown-nosing” the judge, Colin Birss. To quote: “You quote Mr Birss eleven times in your post, and he even made it into the title. Looks like brown-nosing to me. No wonder UK judges become big-headed. Really, it is the judgement that counts, not the one who wrote it.”

“Look who’s on the panels: Alan Johnson (Bristows) and Michael Froehlich (EPO).”IP Kat is killing a decade’s reputation by letting Bristows exploit it like that. Some IP Kat writers have apparently already left because of it. UPC proponents certainly love this brainwash from Bristows and Christopher Weber links to it. IP Kat, or whoever is in charge of it these days, has decided to become megaphone to EPO management and Team UPC. “Disgusting” is an understatement. Here, in this two-part series [1, 2] from Eibhlin Vardy (of Stephenson Harwood) we see stacked panels which proclaim to be a discussion of UPC. They are nothing but staged lobbying events and IP Kat should have ignore these. Look who’s on the panels: Alan Johnson (Bristows) and Michael Froehlich (EPO).

Could it get any more insidious?

“As expected, censorship by Bristows et al kicks in again…”Read the fourth comment in the first part (it miraculously manahed survive the culling/censorship). “It would be nice to obtain the views of other people than from Bristows and consorts,” it said. There are many more comments to that effect, e.g. the first one here (in part 2).

As expected, censorship by Bristows et al kicks in again (we have already given several examples of that, as recently as two weeks ago). IP Kat appears to be censoring comments that are hostile towards the UPC, based on the following comment:

Tim – I agree that the missing comments have likely been “lost” for technical reasons. I very much doubt that there is any “selective editing” going on.

The part of the G&P opinion that I am thinking of is at the end of para 59:
“Whilst Article 1 of the UPCA and Article 71a of the Brussels Regulation designate the UPC as a “court common to a number of Member States”, we do not consider that such secondary legislation is capable of converting the UPC’s fundamental status as an international court into that of a court which is part of the national legal order”.

That seems to pretty clearly set out the position that G&P view the UPC as not being a “court common to the (EU) Member States”. Or am I missing something?

This is a key point, as my understanding is that the UPC will only retain the ability to refer questions to the CJEU if it remains part of the (national) legal order of EU Member States… which it can only do by being a court common to EU Member States. The participation of a non-EU State would seem to rather throw a spanner in the works on that point.

This was said in response to the following comment (reproduced in case of retroactive deletion):

Gordon and Pascoe conclude that the UPC is not “a court common to the Contracting Member States”.

I’ve not gone back to check, but I don’t think that’s quite what they said. They did acknowledge that there would need to be some changes to the definitions and wording around “Member State” and “Contracting Member State”.

At the moment, the definitions in Article 2 UPCA say that a
“Contracting Member State” is a Member State party to the UPCA itself. The suggestion is that the UK could remain as a contracting state party to the UPCA, with those changes to the wording and given the necessary political will.

However, Article 2 also defines a “Member State” as an EU Member State. I think that’s why changes to the wording would be needed.

Proof, in the past I’ve also had posts that just disappeared. I’ve come to the conclusion that it happens when I make a long post that includes HTML tags. If I get the HTML syntax wrong, the error message is very small and tucked away at the top of the post. In a long post, you can’t see it unless you scroll up looking for it, and it is easy to assume that the post was successful.

And prior to this someone said: “Two days on and no one has rushed to counter the proposition that either the UK cannot stay in the UPC post-Brexit or the UPC Agreement is incompatible with EU law. Does this mean that either everyone agrees with that proposition or that no one who disagrees has noticed it?”

People are difficulties leaving comments. Here is another:

Hmmmn. Can’t think what was wrong with my comments that (twice) failed to reach this thread. Let me try again, with a bit of rephrasing.

The article states that “Now, the general consensus seems to be that the UK can participate even after it leaves the EU”. But what is meant here by “the general consensus”? Is it the consensus of all informed practitioners or instead the majority view amongst regular commentators on the UPC? I suspect the latter, not least because I have never heard of any survey seeking views on this point. If my suspicion is correct, then I would caution against using phrases such as “the general consensus”, particularly in view of the fact that regular commentators on the UPC are a pretty self-selecting (and likely unrepresentative) group.

There is another aspect of all this that puzzles me even more, though.

Before the Brexit vote and the Gordon and Pascoe opinion, the “general consensus” was quite the opposite of what it is now alleged to be. But how is it that the consensus amongst regular commentators on the UPC has performed such an astonishing volte face when there has (to my knowledge) been so little attention paid to the key arguments that underpin the rather surprising conclusion in the Gordon and Pascoe opinion?

It appears to me that there are two main possibilities here. The first is that Gordon and Pascoe’s opinion is so clear, persuasive and obviously correct that it has removed the scales from all of our eyes so that we can now see how wrong we were beforehand. On the other hand, the second possibility is that the desire of proponents of the UPC to believe in the conclusion has hindered detailed, critical analysis of the opinion.

Sadly, I suspect that the latter possibility is the best explanation of what has happened. This is primarily because Gordon and Pascoe’s opinion is heavily reliant upon what appears at face value to be a very counter-intuitive conclusion. That is, despite several statements to the contrary in the UPC Agreement itself (the recitals, Article 1 and Article 21), Gordon and Pascoe conclude that the UPC is not “a court common to the Contracting Member States”. Whilst I would not expect commentators to dismiss that argument out of hand, I am more than a little surprised that so little attention has been paid to the question of whether it can possibly be correct.

More worryingly, no one seems to have questioned whether, apart from the possibility of the UK remaining in the UPC post-Brexit, any further consequences might flow from Gordon and Pascoe’s conclusion. I find this particularly alarming as it seems to me that one inevitable conclusion is that the UPC Agreement would be incompatible with EU law.

The reason for my conclusion on this point is that it is only by being “a court common to the Contracting Member States” that the UPC becomes part of the EU legal order, which (amongst other things) affords it the ability to refer questions to the CJEU.

I cannot overstate the importance of this point. If Gordon and Pascoe are correct and the UPC is truly an “international” court (as opposed to part of the national legal system of various EU Member States), then it would have the same status as the Boards of Appeal of the EPO… which are of course unable to refer questions to the CJEU.

Does the “general consensus” take this consideration into account?

Another commenter said: “Is there a problem with the comments facility on this thread? My comments from 2 June and from this morning seem to have both gone astray…”

IP Kat isn’t what it used to be.”I too have had several comments of mine deleted by IP Kat, whereupon I stopped commenting altogether. This isn’t an open forum anymore and it’s clear that they omit (delete) comments based on somebody’s agenda; it doesn’t look like it’s random and it’s not due to technical issues (not all the time anyway).

IP Kat isn’t what it used to be. The sooner we recognise and accept it, the better.

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