06.17.17

Appalling Press Coverage Regarding the Unitary Patent (UPC)

Posted in Deception, Europe, Patents at 3:03 pm by Dr. Roy Schestowitz

Dave Croston in Financial Director
One example of plenty more fake news about the UPC (e.g. [1, 2, 3]), courtesy of those who stand to profit from legal Armageddon

Summary: How the media has lied (and keeps lying) about the UPC, which the European public neither needs nor wants, putting aside serious constitutional issues that are associated with the UPC

PUTTING ASIDE the issue of UPC censorship/deletionism in the mediaa subject we explored here before — we continue to see a lot of EPO-leaning spin in the wake of Germany’s barrier to the UPC [1, 2, 3]. It’s more obnoxious than anything that the same people who conspired in secret to create this mess are now dominating the media, hijacking blogs, deleting comments, and telling off people who contradict or debunk their propaganda.

Watch this new piece titled “Germany delay probably not the end of the UPC — a piece which extensively quotes people with financial stake in the UPC. It quotes Team UPC’s Wouter Pors a lot, for example: “Wouter Pors, head of Bird & Bird’s IP practice in the Netherlands, explained that the Bundesverfassungsgericht has the authority to issue an order blocking the president from signing in a law.”

Where are the opponents of the UPC? They were not even approached for a comment. There is zero balance there. People who want to profit using the UPC (at the expense of everybody else) refuse to believe it’s dead; that’s hardly surprising. Where are the voice of reasons though? Totally omitted from this article, as usual…

Looking around for more coverage of this, we are finding little less than sites controlled if not owned by patent law firms. In fact, patent firms that actively wage a coup (to replace the current system with the UPC) are dominating all the blogs and some responded to the breakdown with potentially paid-for placements like these [1, 2] from William Fry and CMS Hasche Sigle.

One former Kat said that “it could be” the end of the UPC, but that’s just because he tends to be more honest than most and he occasionally links to us regarding the UPC (albeit he does not agree with the relatively abrasive tone).

Almost all UPC opponents prefer to remain anonymous and it’s easy to see why. They don’t want to receive abuse. A German complaint was filed anonymously, but we think we know who filed it. Character assassination would ensue of the identity of the complainant was known.

Now that Germany must decide whether the UPC is constitutional at all (it’s not, for reasons we covered here before), one person said he expects a “decision in perhaps 6 or 12 months.”

That’s a very long time. To quote in full: “A few people have asked about timing. From what I gather the Court proceedings have already been expedited, which means a decision in perhaps 6 or 12 months. Still before the date of Brexit but getting uncomfortably close.”

“Remember that Spain raised this very complaint (incompatibility of the UPCA with EU law),” said another comment. It’s part of an ongoing discussion (in uncensored comments) about the legality of the UPC (or absence thereof). Reproduced below are the relevant comments in case IP Kat (i.e. someone like Bristows) decides to ‘vanish’ them: [G&P refers to Gordon and Pascoe]

Firstly, the current UPC Agreement is the only one currently on the table. There is no amended Agreement, and there may never be.

Secondly, if the current Agreement does not comply with EU law (because, as argued by G&P, it is incapable of creating a court that forms “part of the national legal order” of EU Member States), then it would be irresponsible to bring it into force… as it would be unworkable from the off.

Also, just because the UPCA Member States are all currently EU Member States, it does not necessarily follow that the UPC (under the current UPCA) will form “part of the national legal order” of the EU Member States. Indeed, it would be absurd if the status of the Member States was the only relevant factor.

For example, why should the UK’s departure from the EU suddenly remove the UPC from the national legal order of other EU Member States? Conversely, why should the mere fact that all signatories are EU Member States mean that an international agreement is capable of creating a court forming part of the national legal order of those states? Does there not need to be something more than just a common status of the participants to properly “embed” the UPC in the national legal order?

Remember that Spain raised this very complaint (incompatibility of the UPCA with EU law) in one of their cases – and that complaint was only dismissed because it was inadmissible, not because it was wrong.

“Secondly, if the current Agreement does not comply with EU law (because, as argued by G&P, it is incapable of creating a court that forms “part of the national legal order” of EU Member States), then it would be irresponsible to bring it into force… as it would be unworkable from the off.”

Indeed it would, if that were correct. Except that this is not quite what G&P are saying. There is more than one way to provide the safeguards required in order to comply with EU law.

One is if the UPC itself were part of the national legal order of the contracting EU member states. Article 267 TFEU and the rest of EU law would then apply directly, with no need to say more. But it isn’t, as you point out. As stated by G&P it’s an international agreement, and the fact that it is common to the contracting EU member states doesn’t change that.

So the way in which the current UPCA provides the necessary safeguards is by stating explicitly that the UPC is common to a number of EU Member States (Article 1). And by imposing obligations on the UPC as a court common to those EU Member States (Articles 20-23). Including an obligation to make references to the CJEU in accordance with Article 267. (See G&P paragraph 15).

This is not a direct application of EU law (including Article 267 TFEU), but instead it hard-codes the same obligations into the UPC itself.

The other side of the coin (currently) is that the CJEU automatically has jurisdiction to receive references and decide questions of EU law, because the UPC is common to a number of EU Member States, and the CJEU has jurisdiction over all those Member States. No need to hard-code anything.

However, this current form of the UPCA needs amendment after Brexit. G&P’s proposed amendments keep the hard-coded obligations, but adapt them to the new situation that one of the contracting states is no longer an EU Member State. As previously, this is not a direct application of Article 267 etc.

Unfortunately the CJEU would no longer have jurisdiction automatically, as its jurisdiction is limited to EU Member States (G&P paragraphs 80, 84, 85). This is why G&P say that a separate agreement is needed, with the EU as a party. The CJEU’s jurisdiction also now needs hard-coding.

One minor point: is it not a little odd that there are references in Articles 21 and 22 UPCA that only seem to make sense if the UPC does form part of the national legal order of the EU MSs?

For example:
“as part of their judicial system” (Art. 21);
“as any national court”; and
“in accordance with Union law concerning non-contractual liability of Member States for damage caused by their national courts breaching Union law”.

It appears to me that the drafters of the UPCA tried hard to create a “Benelux-type” court that the CJEU’s Opinion 1/09 indicated was OK. But now it seems necessary to argue that the drafters were unsuccessful in their efforts, and that the UPC complies with EU law by way of a novel mechanism.

I can at least concede that the UPC is very obviously different from the Benelux Court. This is not least because the UPC is an alternative to the national courts, rather than a court that is “plugged in” to the national legal systems by way of appeal / remittance links.

However, I have my doubts over whether the proposed novel mechanism for complying with Article 267 TFEU would work. That is, given that the CJEU can only accept references from “any court or tribunal of a Member State”, is there not a risk that the CJEU – despite the safeguards that you mention – would find that the UPC is not a court “of a Member State”, and thereby refuse to accept preliminary references from that court?

Of course, I do not rule out the possibility that the CJEU will find a reason why the current UPC set-up is compliant with EU law. However, as the CJEU has not yet given the system the “thumbs up”, we cannot be certain that they will do. In this respect, do you not worry that the arguments in G&P’s opinion could perhaps undermine a crucial point for EU law compliance (namely the ability for the UPC, as a court “of a Member State” to make references to the CJEU)?

More importantly, do you not worry about the risks of “going live” with a system that is not guaranteed to be compliant with EU law and where there are no guarantees that the UK can remain in that system post-Brexit? I understand the temptation to press on given that we are now so close to realising a long-held wish amongst certain sections of the IP community in Europe. Nevertheless, given the lack of guarantees on important points (especially when there are lingering, and well-reasoned doubts on those points that cannot yet be dismissed), I cannot help thinking that pressing on regardless generates huge – and frankly unacceptable – uncertainty for rights holders (and interested 3rd parties).

What we advise readers is, ignore pieces written by firms with stake in the UPC, so-called ‘reports’ (puff pieces/PR) that extensively quote those firms, and stacked panels that include liars from the EPO. Sadly, nowadays comments about the UPC are being deleted from numerous prominent blogs, but those comments which miraculously remain almost unequivocally voice pessimism about the UPC. Professionals in the field evidently don't believe what Team UPC is saying and there are surveys that show that.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2017/06/17/fake-news-regarding-the-unitary-patent/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 27/7/2021: New Godot Engine Beta and a Call for Funding of GIMP

    Links for the day



  2. The EPO's 'News' Page Annotated

    From the above: Greenwashing; Offshoring; ViCo nonsense; Openwashing; Patents=space travel? Faking empathy; Patents as monopoly; ViCo whitewash; Constitutional hogwash; ViCo propaganda; Pinkwashing; Whitewashing GDPR violation; Self-praise; Exploiting pandemic for $; More openwashing; Protectionism; Outsourcing; Occupying the legal system; Grifting and PR; 'Legalising' EPC violations; More surveillance; Patents as sharing?; Patents as mere info? Lobbying by litigation firms; Proprietary/MS



  3. Playing With Fire: The Linux Foundation Associates the Linux Brand With Proprietary Software and GitHub (as Usual)

    Racist IBM is once again using or misusing the “Linux” brand (through the Linux Foundation) to promote racist Watson (which is also proprietary software); the ‘Linux’ Foundation is now revisionism as a service (not just in service of its own mythology, e.g. the operating system starting in 1991 rather than 1983)



  4. Links 27/7/2021: KDE Plasma 5.22.4, Libinput 1.19 to Include Hold Gestures

    Links for the day



  5. Recording Videos With Webcamoid on GNU/Linux

    A lot of people use OBS Studio or similarly high-profile Free software that's mostly designed for live streaming; but this video is a bit different as it takes a look at Webcamoid, which not many people even know about, explaining the current setup that's used to record pretty much every video we make



  6. Getting News and Updates Over Gemini (in General and for Techrights)

    Gemini (gemini://) is very well suited for 'consumption' of news; the hardest part is getting past the simple fact that not every article needs to have pictures in it and syndication (for updates) isn't done through social control media



  7. IRC Proceedings: Monday, July 26, 2021

    IRC logs for Monday, July 26, 2021



  8. [Meme] Microsoft is Lecturing Us on Security!

    Dev Kundaliya and 'Hacker' News play along and go along with this laughable lie that Microsoft is some kind of security expert with moral authority/credibility on this subject



  9. [Meme] EPO 2025 (When Most of the Decent Patent Examiners Have Been Chased Away)

    Based on this week's reports (see batches of Daily Links), many recently-granted European Patents are being thrown out by courts, which means it's hardly surprising that demand for European Patents is in fact decreasing (while quality/validity/legal certainty nose-dives)



  10. Funding Sources Like Corporate Sponsors/Patrons/Masters Put at Risk the Freedom of Free Software

    Sources of funding or “sponsors” such as large corporations typically come with some barely-visible or temporarily-invisible strings attached (an expectation of commercial reciprocity, rendering the recipients subservient like ‘slaves’) and we need to understand how to preserve software freedom in the face of such trends



  11. Links 26/7/2021: Nanotale on GNU/Linux and IBM Promoting Microsoft GitHub

    Links for the day



  12. Free Software Projects Should Quit Selling Keynote Speeches to the Highest Bidders (Corporations) and Choose Based on Merit/Relevance

    OSI, SFC, FSF and Linux Foundation are in effect selling time and space (even to Microsoft, except the FSF was never foolish enough to do this). As of today, LibreOffice does the same thing (which might remain benign; just be sure to reject rivals as "sponsors" because it dooms projects and events).



  13. Microsoft Windows Has Lost Another 2 Million Web Sites This Past Month Alone (IIS Floundering)

    The rapid decline of Microsoft, Windows and IIS in servers is undeniable; it's just a damn shame that corporate and so-called 'tech' media never writes about this subject



  14. Links 26/7/2021: Grml 2021.07 and DXVK 1.9.1

    Links for the day



  15. Increasing Focus on Advocacy for the Free Software Community (Putting Control Over Computing in the Hands of People, Not Large Corporations)

    After 31,000 blog posts it's time to add a new theme to our coverage, which prioritises science, computer developers, and technology users; an urgent matter and pressing issue is the passage of control (e.g. over code and policy) to non-practising entities



  16. Video: How to Follow All Our Channels (Interactively) From the Command Line

    We’ve been enhancing the access possibilities/options for #techrights and other IRC channels, partly because we want to encourage more people to wean themselves off the DRM-ready Web, the monoculture, the bloat, the surveillance, and centralisation in general (the Web favours centralisation, which is exacerbated by the bloat and other topological dynamics)



  17. IRC Proceedings: Sunday, July 25, 2021

    IRC logs for Sunday, July 25, 2021



  18. Links 26/7/2021: Third RC of Linux 5.14 and Beta 3 of Haiku Project

    Links for the day



  19. No, Microsoft Does Not Get to Lecture Us on GNU/Linux Security (or Security in General)

    The corporate media wants us to think (or feel) like Microsoft is some kind of security guru; the reality, however, is the exact opposite because at Microsoft sometimes if not always/by default insecurity is the actual objective (back doors)



  20. Links 25/7/2021: MyGNUHealth 1.0.3 and Lots About Patents

    Links for the day



  21. Links 25/7/2021: LibreELEC (Matrix) 10.0 RC1 and Ubuntu 20.10 (Groovy Gorilla) End of Life

    Links for the day



  22. IRC Proceedings: Saturday, July 24, 2021

    IRC logs for Saturday, July 24, 2021



  23. Following Techrights IRC Channels From the Command Line (or the Web and Gemini)

    The (almost) real-time logs for #techrights have been available in http://techrights.org/irc and in gemini://gemini.techrights.org/chat/index.gmi for over a month; today we extend that to cover all channels (aggregated into one)



  24. Links 24/7/2021: Skrooge 2.26.1 and K-9 Mail Release

    Links for the day



  25. Links 24/7/2021: FreeBSD Report (April-June) and KDE Reporting Its Progress

    Links for the day



  26. Support the Founders of GNU and Linux, Besieged by People and Corporations That Hate Development Communities and Seek Oppressive Monopoly Over Everything

    The founders of GNU and Linux (Stallman and Torvalds, respectively) want to give us free (as in freedom) software by which to control our destiny; the forces looking to demonise and marginalise both of them don’t have the same objectives (to whom they’re antithetical)



  27. IRC Proceedings: Friday, July 23, 2021

    IRC logs for Friday, July 23, 2021



  28. [Meme] Linus Should Reassert Control of Linux

    Linus Torvalds needs to quit being at the mercy of monopolies (or monopolists who sent him to see therapists as if he was mentally ill); at the moment the development of Linux isn’t steered by people and thus not for people (but large corporations that work with states and armies)



  29. Remember That the 'Linux' Foundation is Working Against You (Unless You're a Monopoly)

    The corporate siege by a certain so-called ‘Linux’ Foundation (a siege against people and against their authentic communities) carries on; of course they try to disguise it as the exact opposite of what it really is and it is therefore essential that we all understand how and why they do this (these tactics are borrowed from dirty politics and contagious cults)



  30. Links 24/7/2021: Rackspace Layoffs and Ubuntu Touch's Latest

    Links for the day


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