06.14.17

Even UPC Proponents, Paid by the EPO’s PR Firm, Admit That UPC May Never Happen

Posted in Europe, Patents at 5:45 am by Dr. Roy Schestowitz

Watch out for the latest lies from Bristows

Bristows LLP and EPO

Summary: Speculations are being floated regarding the cause of the impasse, which is going to result in a very long period of uncertainty and possibly the collapse of the Unified Patent Court (UPC) as it was envisioned by Michel Barnier, Benoît Battistelli and other opportunists

MANY articles have already been published about the latest developments in Germany and quite a few articles about this have been published here too (over the past couple of days). We try to take stock of everything. This is very important. It’s historic even.

EPO insiders are trying to figure out what goes through the minds of EPO management right now. Or what comes out of their lips… it can’t be good.

This latest UPC failure was finally brought up in mainstream international media. Reuters, for example, says that “Germany delays common European redress for patent violations” and to quote the opening part:

Germany’s constitutional court has held up a European patent law that would have allowed inventors in any member country to easily challenge patent violations in any other EU country, a spokeswoman said on Monday.

That’s not a very good description as any person, not just “inventor” but even a troll from any country in the world, can exploit this to harm companies that are European. It’s not at all desirable to Europe. It makes European companies ever more vulnerable.

Team UPC is already trying to belittle and mislead, as usual.

“Report[s] suggest this was an informal request,” Henrion noted based on Bristows, “taking the form of a telephone call followed by written request…”

That’s quite an understatement pushed forth by Manuel Rey-Alvite Villar and Lisa Schneider in Twitter and their marketing/propaganda blog. They said this: “The timescales going forward are presently unclear, but this move by the BVerfG does not necessarily mean that additional delay to the start of the UPC is inevitable, still less that there will be a final decision of the BVerfG finding that Germany cannot lawfully ratify the UPC Agreement.”

This is a lie! It does “necessarily mean that additional delay to the start of the UPC is inevitable…”

Bristows workers, how much are you paid (or compensated) to lie so much? Here is a report from British press thats’ targeting lawyers:

According to media reports, Germany’s Constitutional Court is considering whether legislation backed by the country’s parliament, which would give recognition to the jurisdiction of the UPC in Germany, is constitutional.

Frankfurter Allgemeine Zeitung (FAZ) reported that the Constitutional Court formally requested that German president Frank-Walter Steinmeier step back from formally signing the legislation into law while it considers the legal challenge that has been lodged. The president’s office said the legal complaint filed is not a “hopeless” case, FAZ reported.

A spokesperson for Steinmeier has confirmed that the legislation will not be signed into law until an assessment of the legal complaint has been completed, according to Reuters.

In a protocol similar to Royal Assent in the UK, legislation passed by Germany’s parliament must be signed by the president before it can come into force.

[...]

Last week, prior to news of the German legal challenge breaking, the body tasked with laying the foundations for the new judicial system to take effect, the UPC Preparatory Committee, said that its previous target date for the UPC to become operational, of December 2017, “cannot be maintained”. The Committee blamed delays to the ratification of the UPC Agreement by some countries.

In Juve, the main writer on the subject said [1, 2]: “Kläger gg. UPC ohne anwaltl. Beistand in einer so komplexen Materie. Das muss ein spezialisierter Anwalt sein [...] Ein Kläger, der anonym bleiben will, kein anwaltl. Vertreter, die Gründe für UPC-Klage @BVerfG bleiben im Dunklen….”

This can be translated from German to say that the “applicant who wants to remain anonymous…”

Watch who is being propped up as an expert by Juve: Winfried Tilmann! Does the author not realise the rogue role of Tilmann? He is a key part of the whole UPC ‘conspiracy’… other such people, Alexander Esslinger‏ for instance, admit the dire consequences: “It is expected that the German Constitutional Court decides about the German #UPC ratification in about 4-6 months…”

That’s a very long time. It also serves to prove that Bristows is lying. It’s very directly refuted by people who know better. As for IAM, it said in relation to Alexander Esslinger’s estimates: “Looking at earliest UPC ratification in 2018 now. Throw in few more delays & 2019 begins to seem most likely for start, if it happens at all…”

This isn’t the first time that IAM doubts the practicability of UPC altogether. Reality starts to set in. Managing IP, another booster of the UPC in “media” clothing, said: “The court case is a constitutional complaint (number 2 BVR 739/17) before the German Federal Constitutional Court (Bundesverfassungsgericht) concerning the UPC Agreement.”

This can take a very long time. Based on this comment, the complaint is very recent. To quote: “Any more infos about this case “BvR 739/17″? Search engines are pretty silent? “17″ means it was filed this year?”

We think we know who filed it and on what basis. There are more complaints on their way and we are not at all surprised by this. The writings were all along on the wall and the dirty tricks of Team UPC belatedly take their toll and somehow it shocks them. As this other comment points out, a 1:30 (AM!) vote with just 5% of the members present is a symptom of UPC being a scam. We wrote about this at the time. “I think the reason could be more trivial,” said the comment, “transfer of sovereignty requires a 2/3 majority of the members of the Bundestag and Bundesrat, which was not the case when the Bundestag took a vote during nighttime.”

That’s just one among many irregularities. A person then asked: “What makes you so sure it requires a two third majority? Art. 24 Grundgesetz seems to give the Bundestag the right to do this via a simple law.”

The following person thinks it’s “flabbergasting to think that all legal advisers in the government have missed such a simple point.”

Well, maybe they hoped to bury these inconvenient (to them) facts. Remember where Maas stands on the UPC. Here is the full comment:

What was the fraction needed when the EPC and its amendment were ratified? If the fraction was indeed 2/3 then this might be the reason for the stop.

On the other hand, it seems so flabbergasting to think that all legal advisers in the government have missed such a simple point.

More on this 2/3 majority:

What I meant to say was that I can imagine the pending case that the Constitutional Court refers to is complaint due to the lack of a 2/3 majority of the members according to Article 23 GG in connection with Article 79 GG. I am not an expert on the German Constitution and I would not dare to guess if such a complaint would be successful. However, such complaint could fit the frame: “not wholly without merit” and filed in 2017 after the vote was cast in the parliament in March 2017.

The remaining comments focus on the EPC and bring up Battistelli (BB) as follows:

It’s unlikely that the BvG is delaying ratification at this stage on a whim or that there has been some trifling error in the lower legislative process. Although the intervention is on an “Interim” basis, it is very rare that such a measure is granted at this legislative stage in Germany. A slow-burning issue over here, ever since BB’s attempted dismissal of the BoA member, is that the theoretical deficiency in the EPC’s “simulated” separation of powers under A23 EPC (tolerable, perhaps, under the German constitution) has now manifested itself in practice (not tolerable) through BB’s actions. The executive (BB) has actually interfered with Judicial Independence in practice. The so-called “reforms” of the BoA structure are no more than a fig-leaf and might well make the situation worse. The AC has shown itself not capable of bringing BB to heel. Of course, this might affect the justiciability under the Grundgesetz not just of proposed unitary patents, but existing of pending EP(DE)s.

“Very interesting thanks,” wrote one person, “but I don’t see what BB has to do with the UPC.”

One has got to have lived under a bridge to not know how Battistelli is connected to the UPC. A lot of the abuses of Battistelli were all along justified using “UPC” as a catch-all excuse.

Here is a good explanation of the correlation:

…what BB has to do with the UPC is simple.

UPC patents will be granted out of the EPO. BB is executive head of the granting mechanism of Unitary patents which can only be enforced via the UPC (and incidentally he has been the public cheerleader for a UP and the UPC system for years, see EPO website announcements ad nauseam)

The EPO BoA has a final Appeal instance which will rule on the validity of subject-matter that will eventually be enforceable against people in member states of the UPC.

Art. 23 of the EPC effectively requires that the members of the BoA (acting as the final arbiter of validity, from the Point of view of the patentee) should be Independent.

Events reported, for example on so many IPkat threads in the past, would arguably leave the reasonable person in some doubt as to whether those BoA members are really Independent.

The German Basic Law under Article 97 refers to and provides a guarantee of Judicial Independence in Germany.

If a property right granted via the EPO comes into effect in Germany via an administrative process which arguably might not comply with the principle Judicial independence, the BvG might want to take a look at that.

Just sayin’.

Henrion (FFII) then weighed in to say: “Remember that the rules of procedure (130 pages of laws) are not made and approved by parliaments. They are a disgrace to how laws should be made in a democracy.”

Expect FFII to begin an intervention/interference soon. It already issued a press release against the UPC earlier this year (one that we had drafted).

Here is more on this:

Ben, I suspect that you are right. I am sure that Germany is able to participate in the UPC, it is just a question of whether or not that are going about it the right way. If they have not done it right presumably they will have to start ratification again (and that would be after their election)

Does anyone know how long it will be before we get a ruling? If the timing slips further we run the risk of Brexit having happened before the UPC opens its doors.

Any Brits enjoying the schadenfreude of Germany delaying the UPC should remember that the Queens Speech setting out the UK government’s legislative programme has apparently been delayed because of the necessity to write it out on goat skin and the fact that the ink takes many days to dry on that surface.

“Asking 25 national parliaments to approve each and every minor issue will cost a decade per Rule change,” the following comment said. Well, that’s the law. Don’t be pursuing shortcuts just for a bunch of trolls and law firms.

Come on. Neither the EPC nor the PCT could be handled absent easily amendable Rules, and the same holds for the UPC. Especially for a totally new organization it is essential that it is easily possible to adapt the Rules to practical issues that will only appear in practice. Asking 25 national parliaments to approve each and every minor issue will cost a decade per Rule change.

Issues associated with Battistell’s abuses are now starting to creep in as well. He had done so much to damage the legitimacy of the EPC and the EPO that he possible left the UPC too in ruins:

The issue in the older case is less a granted patent by the EPO, but a lack of independent courts for applicants whose application got refused.
If the BoA/DG3 is not independent, then the applicant who did NOT get a patent got denied his constitutional right to an independent judges review of an administrative decision.
There could be several sanctions the BVerfG could impose:
– Germany has to leave the EPC with immediate effect (extremely unlikely, especially since the EPC worked so fine since so many years.)
– Germany has to work towards an amendment of the EPC within X years, or leave within that timeframe (the timetable will be tight, and not work without the required diplomatic conference)
– Applicants get, after refusal, access to German courts for a German patent/side entry to national DE phase (unlikely, but could be proposed by the judges for an intermediate solution – might need a minor law by the German parliament)

We’ll see, either solution will not be liked by the EPO management, as their recent “reform” of perceived independence will also be scrutinized by the judges of the federal constitutional court in Germany.

This morning we found some new comments too. One anonymous comment referring to FAZ:

In its Wednesday edition, the FAZ still has not been able to get the Constitutional Court to give it more detail, so it decided it’s best to turn to conspiracy theories instead. Ready? Did you know that the Justice allegedly acting as rapporteur in this case is married to the Chief Judge of the Federal Patent Court?

Further explanation of the FAZ piece (which everyone seems to link to) soon followed:

Some details from tomorrow’s FAZ article: Office of the President confirmed it has “suspended” its pre-certification review of the German consent act to the unified patent court, at the request of the Constitutional Court (case 2 BvR 739/17). According to the Office of the President, the Court considers the constitutional complaint “not, at the outset, without prospect” (“nicht von vornherein aussichtslos”). While the complaint as well as a “parallel” emergency petition concerned the law governing the patent court, patent reform as a whole is also on hold, being “materially interlinked”, according to the Office of the President. FAZ hasn’t learned how long the procedure is set to be on hold, and what exactly the reason is.

We are trying very hard to gather information about this because we predict that many lies will soon be disseminated, not just by the likes of Bristows, where lying has become a matter of routine. They seem to have lost their humility or the ability to shy away from falsehoods. They’re patently evil.

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