06.28.17

Bristows LLP is Still Trying to Attach Wings to the UPC and Distract From Serious (Likely Fatal) Barriers to It

Posted in Europe, Patents at 2:59 am by Dr. Roy Schestowitz

Still “brown-nosing” judges and officials, not to mention Battistelli, for UPC and patent trolls in the UK

Summary: In spite of the UPC being in a morbid state, Bristows carries on pretending that all is rosy and progress is being made

THE EPO‘s top-level management and Team UPC are the main proponents of the UPC (if not its sole proponents, except few multinational companies and trolls). Lies are abundant and they need to be debunked, we cannot just ignore them.

We’ve written about the UPC for nearly a decade (before it was even known as “unitary” anything). We’re accustomed to the lies.

“We’ve written about the UPC for nearly a decade (before it was even known as “unitary” anything).”So what’s the latest?

Well, UPC proponents decided to tell me: “Draft legislation is online.@Ipkat reporting its existence =/= “propaganda”. Read it in black & white for yourself: http://tinyurl.com/ybtf8ah5″

Yes, we saw that. We had already commented on it. Before the above tweet in fact!

For those who aren’t watching the UPC closely, well… there’s nothing new really. It’s stuck. It’s not going anywhere any time soon (if ever).

“We’re accustomed to the lies.”Days ago Managing IP published a PAID-FOR (“sponsored,” by their own admission) UPC brainwash/hogwash for those who seek to impose the UPC on us all. We wish to remind readers that Managing IP has played a huge role in UPC promotion, on behalf of its affiliates and sponsors. It is hardly an objective publication and we confronted it over this many times before. Managing IP‘s excuses were always unconvincing.

Worse, however, is what happened to IP Kat. We used to appreciate its EPO coverage, but look what it has turned to. It actually helps Battistelli.

Yesterday, Annsley Merelle Ward of Team UPC and of Bristows was sucking up to Jo Johnson (probably for UPC agenda). Some accuse her of "brown-nosing" judges, too. She did this at IP Kat, which added in Twitter “looking forward to a lot of IP…”

“Yesterday, Annsley Merelle Ward of Team UPC and of Bristows was sucking up to Jo Johnson (probably for UPC agenda).”Bristows, in the meantime, published this headline that says “UK resumes its UPC legislative process,” but it’s a very ambitious statement. It’s misleading.

We have already documented Bristows' attacks on British and European democracy and its pattern of lies, potentially falsifying statements to suit its own ’causes’ (financial).

In the post, Dominic Adair links to an undated page and says: “The UK Intellectual Property Office also announced that a separate piece of legislation on privileges and immunities will be laid in the Scottish Parliament in due course.”

No link or anything. They already used unsourced statements, attributed to UK-IPO albeit without any way to verify. And being Bristows, one must assume (by default) that they deceive or outright lie. Recall what happened in Germany and what Bristows said about it. The only thing Bristows is good at is lying and deleting comments of people whose views it does not agree with (we documented many examples).

“And being Bristows, one must assume (by default) that they deceive or outright lie.”Later on, Richard Pinckney of Bristows pushed out another puff piece and Mathieu Klos of Juve drank some of the Kool-Aid [1, 2], even linking to the Estonia mirage of Bristows (trying to give an illusion of progress). Bristows had actually paid for these mirage pieces (placements in the media), as we noted last week. And not a word about Germany, eh?

Suddenly the distraction tactics are all too obvious! Just anything to push forth the illusion of “UPC progress”, as Managing IP likes to dub almost every ‘article’ about the UPC (not just paid-for ‘articles’).

Days ago Anne Hargreaves retweeted Joshua Rozenberg and said: “Latest in the continuing saga of the UPC/UP.”

Rozenberg wrote: “Government has laid an order to allow ratification of the Unified Patent Court. If approved and Germans ratify, court should open in spring.”

“Suddenly the distraction tactics are all too obvious!”“No,” I told them, “spring has already passed and the UPC objection can drag on until next year (Constitutional).”

Where are these people dragging their lies from? And who would be gullible enough to believe them, after they made false predictions every single year for a number of years?

Not to our surprise, IP Kat continued to relay Unitary Patent propaganda from Team UPC (Annsley Merelle Ward in this case) less than a day ago. To quote: “With Germany’s recent constitutional challenge (as reported by the IPKat here) and Parliament being distracted by the recent UK elections and Brexit negotiations, do not hold your breath for much UPC activity before the House rises on 20 July 2017. It’s summer, after all…”

So much for “court should open in spring…”

“Well, Bristows are fatally wounding their own reputation (if they had any).”As people here say, “bollox!”

“UPC proponents as Bristows are determined not to abandon,” an EPO insider told me, “unfortunately…”

Well, Bristows are fatally wounding their own reputation (if they had any).

So is Bird & Bird, whose UPC propagandist Wouter Pors is facing a barrage of criticism in IP Kat comments. Here is the latest:

Mr Pors is trying to capitalize on that tiny piece of information on the case that, most likely, a German colleague of his has managed to secure and has insinuated to him. And indeed, it would be surprising if the topic mainly discussed in the Juve interview with Prof. Bross played any role in the constitutional complaint, as it is difficult to see how the internal organisation of the EPO could be used as an argument for the unlawfulness of the UPCA under the German Grundgesetz. This may be different for the European patent with unitary effect an attack on which on the basis of the German Constitution would, however, be a completely different story.

It is rather puzzling to see demands from several people, at least some apparently having a legal background, that the complaint should be made public, criticizing the BVerfG for alleged “secret proceedings”. Quite frankly, in which jurisdictions are court submissions made available to the public? If reference is now made to the “importance of the case”, let me ask you this: In proceedings at the CJEU, e. g. in cases C-146/13 and C-147/13 relating to the “patent package”, which information is made public about the submission of the parties? Three months after filing the requests are published in the Gazette of the court, usually four to five sentences, that is it. The reasons why knowledge of the submissions in a court case is limited to the court and the parties seem to be self-evident. The present, in most cases regrettably uninformed hysteria vividly underlines the legitimacy of this limitation.

Someone else ended up responding to a factually incorrect comment which we chose not to quote/reproduce. Here is the response:

Tim H – whilst it might not seem that important to you, there is an important (and direct) link between the EPO and the UPP.

For certain patents (EPs having unitary effect and not opted-out EPs), ratification of the UPP entails transfer of sovereignty from national courts to the UPC regarding the competence to handle certain disputes (for infringement, revocation, etc.).

The transfer of sovereignty is immediate and irreversible for EPs having unitary effect. Thus, the registration of a request for unitary effect is directly linked to the transfer of sovereignty.

Whilst I have no idea whether it forms part of the constitutional complaint, I would certainly understand if the BVerfG wanted to be persuaded that requirements under German constitutional law are satisfied by both the governing laws for the UPP and the bodies having key roles (connected with the proposed transfer of sovereignty) under that package.

And here’s another (about the BoA):

….a patent applicant which got a refusal can also request a judicial review from German courts.
(The question is about equality of arms for applicant/proprietor and opponent, do both have access to an independent judicial review? at the EPO, only the opponent as losing party could go to national courts, and applicant/proprietor does not have access to a judicial review by national courst if the EPO/BoA do not grant a patent (in amended form). The question is open if no patent is present, and null if patent got granted.)
With EPO-refusals, only the Boards of Appeal remain as remedy (except for conversions under Art. 135 EPC), the BoA may or may not be an independent judicial review as required by the german constitution. But if DG3 is the first instance to not grant a patent, what then?

Rumours from the EPO suggest that a BoA judge might officially be sacked later this week, even if such action is not legal (as per the EPC). Any information (or leak) related to this would be appreciated. █

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