09.15.17

The UPC Fantasy is Going Nowhere as Complaints and Paperwork Pile Up

Posted in Europe, Patents at 7:25 am by Dr. Roy Schestowitz

Battistelli prematurely shot them at the back

Summary: Many submissions and complaints about the Unitary Patent have time to arrive before the end of October as a decision on the matter seems as distant as 2018

What Techrights was about to reveal last week (but did not, for bureaucratic reasons) is now public information. The UPC faces many barriers in Germany. What started with a single complaint is now dozens of texts, which are definitely going to take a long time to process. Don’t expect any judgment on the matter before next year.

As usual, there’s a vast difference between reality and what Team UPC is saying. Watch this tweet from Kluwer’s Christine Robben‏, who ensures her employer’s UPC agenda will move along smoothly (it won’t). Team UPC and its affiliates wish us to believe that the UPC will come very soon (for them to ruin the real industry, for profit, using a lot of litigation). Here is “UPCtracker” again (another UPC booster) quoting from the puff piece: “Should the [constitutional] complaint be dismissed, I think the system is that robust that this delay will not hinder its establishment.”

Nonsense. There are many more barriers to it. “If another complain[t] is tabled in another country different from UK/DE/FR,” Benjamin Henrion, “would that also slow it down?”

Obviously!

Henrion has already made a complaint in his own country, Belgium. And I know for a fact that here in the UK we have enough connections in the software industry to produce a powerful complaint (shall the UPC agenda make any progress, which is unlikely).

The FFII too is about to intervene. Here is a message sent not too long ago by Henrion:

Consultation of third parties by the Court regarding the Unitary Patent complaint

Dear Mdme Lang,

I am writing to you following information that was published yesterday regarding the ongoing analysis by the Constitution Court of the pending complaint on the Unitary Patent ratification:

This article mentions the Court is consulting 3 associations for advices:

“JUVE reports that recipients of the complaint include the Federal Government, the German Bar Association (Deutscher Anwaltverein, DAV) and EPLAW (European Patent Lawyers Association).”

Do you know if this consultation is also opened to other third parties?

Our association FFII eV has looked at filing a similar complain, but we have lost track of the deadlines to do so.

In Belgium, I have personally filed a similar complaint, but this was rejected because of a delay misunderstanding.

I have understood that some fundamental questions, notably the language one and automated non-legally binding transations to german, are not addressed by this complaint, so we would like to see the court addressing this question, among others.

If you could clarify what would be the procedure to file observations, we would be very interested to do so.

There’s lots more stuff like this on the way, yet Kluwer produces propaganda pieces titled as selective quotes (as usual) to give a false impression of inevitability. Kluwer now quotes a Belgian judge, Sam Granata, as saying “Future judges of the Unified Patent Court will be very motivated to make the court work…”

This is just Team UPC chatting with Team UPC to tell us how wonderful UPC would be. It’s all just an echo chamber. It’s nonsense.

There’s no “future judges”; there’s not even a UPC and hiring has been halted. Forget about these “future judges” — they’re hypothetical!

To quote from the Kluwer piece:

In the first period of functioning of the Unified Patent Court, the judge-rapporteur – who has important powers in the new system – should as much as possible revert issues to the panel of judges as a whole. This is beneficial for the system and can prevent forum shopping, according to the Belgian judge Sam Granata*. He has been involved for years in the creation of the Unified Patent Court (UPC) and is co-author of the book ‘The Unitary Patent and the Unified Patent Court’, which was published earlier this month by Wolters Kluwer. In an interview with Kluwer IP Law, he also discusses the consequences of the Brexit and the German Constitutional complaint.

So Granata “has been involved for years in the creation of the Unified Patent Court”… how objective!

They ask him about his own creation.

Moving on a bit, Juve’s Mathieu Klos wrote a couple of days ago: “These institutions also received a request for comment by German Constitutional Court: Bundesrat, all state governments, BRAK […] Total number of parties to comment on CCC is 22. Further requests are likely: @EPOorg? Quick decision in Karlsruhe pretty unlikely…”

It can take a long time. There’s even more on the way. The EPO should be disregarded by the courts as it’s corrupt. Watch how, on the same day, the EPO yet again promoted software patents, in defiance of the European authorities and the EPC. To make matters worse, the EPO linked to Watchtroll, a site of patent radicals. This is madness!

On the same day the EPO also boasted about Battistelli sending ‘independent’ judges to exile — as punishment/retaliation — so that he can reduce patent quality (software patents come to mind).

“Find out the currently planned date when the Boards of Appeal will start operations at the new location,” the EPO said. Haar. How poetic a move! Why doesn’t Battistelli just declare all the judges medically/mentally unfit and then tosses away all their past rulings?

The EPO appeal boards have generally been one of our favourite elements in the EPO (like PTAB in the US) because they help ensure patent quality. This is why Battistelli wants to destroy them. They help highlight a decline in patent quality, thereby refuting his lies spectacularly. A couple of days ago the following article was published:

Synthon says EPO appeal board has revoked Copaxone API patent

[...]

The Dutch drug firm made the claim today, stating “the Technical Board of Appeal (TBA) of the European Patent Office revoked the last of Teva’s three glatiramer so-called HBr patents which claimed an allegedly improved process for the synthesis of glatiramer acetate.”

[...]

The EPO was unable to confirm the revocation decision ahead of publication.

Teva did not respond to a request for comment.

That’s just patent quality control in action.

“The EPO’s Board of Appeal recently revoked a patent,” said another new article, this one from Boult Wade Tennant’s Jennifer O’Farrell. To quote:

The EPO’s Board of Appeal recently revoked a patent covering Bristol-Myers Squibb’s blockbuster oncology drug dasatinib (marketed as Sprycel®). This decision (T488/16) provides valuable guidance into avoiding the pitfalls, and exploiting third party vulnerabilities, associated with the issue of plausibility. Plausibility is central to a number of statutory requirements to patentability at the EPO including inventive step, sufficiency and industrial applicability. For example, if the technical effect of an invention is not rendered plausible by the patent application, the technical effect may not be considered in the assessment of inventive step. Further, post-filed data may only be used to support a technical effect which was made plausible in the application as filed.

The present decision relates to Bristol-Myers Squibb’s now revoked patent EP1169038. The granted patent comprised a single independent claim defined by a Markush formula which covered an extremely wide range of compounds allegedly useful as protein tyrosine kinase (PTK) inhibitors. The Opposition Division had concluded that, at the filing date of the application, the claimed compounds had not been plausibly demonstrated to be PTK inhibitors suitable for the treatment of cancer, which was the technical effect the patentee relied upon for inventive step. The Opposition Division therefore ruled that post-published evidence could not be used to support inventive step and the patent was deemed to lack an inventive step.

Anyway, the bottom line is that the EPO is a lawless place and no court should listen to it on anything, certainly not on UPC. The EPO has become a lobbying and lying machine, employing the tactics of WIPO to chill and silence truth-telling. To understand why so many EPO workers kill themselves (many also suffer mental breakdowns) one just needs to study the effect of the Stasi in East Germany.

And speaking of Germany, Dr. Birgit Clark‏ (a German living in the UK) repeated a Bristows talking point a few days ago. An anonymous EPO insider responded to her by quoting me as saying: “The UPC is NOT happening, stop promoting things that don’t exist, EPO.”

Henrion, in the mean time, said: “Deadline for submitting statements regarding the constitutional complaint against ratification of the UPCA is 31 Oct”

We may soon draft something to that effect. There’s still over a month left. Does anyone still seriously think a judgment can be handed down this year? No way!

Thomas Adam (UPCtracker) also said: “Ambitiously enough for commenters: DE complaint against UPC Agrmt: deadline for submitting views is end of October”

They were both linking to Kluwer’s pro-UPC blog (also found via SUEPO). Here is what it wrote:

A spokesman of the Court, the Bundesverfassungsgericht, declared in answer to questions of Kluwer IP Law that a request for comment on the complaint was sent to both chambers of German parliament (the Bundestag and Bundesrat); to the Federal Government (the Federal Chancellery, the Federal Ministry of Justice and Consumer Protection and the Federal Ministry of the Interior); to all governments of the Bundesländer and to the Federal Bar Association, the German Lawyers’ Association (DAV, Deutscher Anwaltverein) and the European Patent Lawyers’ Association.

The spokesman added that ‘during the further course of the proceedings it is possible that the Federal Constitutional Court may ask additional agencies to submit statements’. This could refer to for instance the EPO, the European Commission or the UPC Preparatory Committee, that have so far not received a request for comment.

So it’s going to take a very long time. The UPC will remain in limbo for a long time to come, definitely until the end of winter (if not forever).

Looking at IP Kat for any additional input, we merely found out that comments on the UPC are not showing up again. “IPKat moderators gone to sleep again? Comments taking a long time to appear. Is this an attempt to impede the debate.”

That’s what this comment said.

The SUEPO’s Web site was drawing attention to the comments in there.

Here is another:

Not being an EU Institution in itself does not make something exempt for EU laws, as national institutions are not EU institutions but are subject to national law which must comply with EU law.

What prevents all standard EU or national law from applying directly is presumably the relevant protocols on immunities

These are here:

http://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ma5.html

https://www.unified-patent-court.org/sites/default/files/ppi_final_ii_en_clean.pdf

Not sure how they compare- not my area of expertise and Ive not seen any commentary on either of them. I’ve not seen suggestion that the UPC’s protocol itself is legally or morally problematic.

So you live in an echo chamber.

It didn’t take long for someone to reply to that:

I’ve not seen suggestion that the UPC’s protocol itself is legally or morally problematic.

Neither has there ever been any suggestion that the EPO’s protocol itself is “legally or morally problematic”.

It even includes a provision for co-operation with national authorities “to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol”. (Article 20)

What could possibly go wrong there ?

And next: the UK-IPO’s situation.

There’s also an interesting explanatory memorandum available here:

https://www.gov.uk/government/publications/eu-no12017-protocol-on-privileges-and-immunities-of-the-unified-patent-court

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/584443/EM_EU_1.2017.pdf

“The question remains thus why the UPC was not submitted for opinion to the CJEU,” said the following comment.

Point 90 in C 146/13 (the rebuttal of the Spanish complaint) is merely a summary of the 6th point brought forward by Spain, and cannot be considered part of the decision of the court!

When quoting the decision, please do it correctly and not in a biased way.

The position of the CJEU is to be found in Points 101 and 102 of the judgement:

101 However, it should be borne in mind that, in an action brought under Article 263 TFEU, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by Member States.

102 Nor do the Courts of the European Union have jurisdiction in such an action to rule on the lawfulness of a measure adopted by a national authority (see, to that effect, judgment in Liivimaa Lihaveis, C‑562/12, EU:C:2014:2229, paragraph 48 and the case-law cited).

103 It follows that the first two parts of the sixth plea in law must be rejected as being inadmissible.

The legal means used by Spain are thus not considered admissible, that means, that actually on this point , no decision as to the substance has been taken by the CJEU.

This is quite different from the allegations submitted.

Point 127 of the Gordon-Pascoe paper is an opinion, not a fact.

The question remains thus why the UPC was not submitted for opinion to the CJEU.

The best comment, however, is this one. Here is the ‘money quote’: “”industry in UK”! Nobody else. No wonder that the legal industry pushes to stay in the UPC!”

It also said: “Where has the British industry, I mean the real one, not the financial or the legal one, gone?”

The comment in full:

The explanatory notice signed by Mr Jo Johnson is quite revealing, and gives away some interesting figures:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/584443/EM_EU_1.2017.pdf

Fee income for UK ? £ 166 millions
Legal business for UK firms £ 200 millions

Savings through UPC for UK firms £ 2 millions no duplication of litigation

Savings through UPC for UK firms £ 17 millions on renewal fees

Who will be the big beneficiaries of the UPC, should UK be allowed to stay in it after Brexit: the legal “industry in UK”! Nobody else. No wonder that the legal industry pushes to stay in the UPC!

It is doubtful that £ 17 millions will be saved in renewal fees, as the number of patent owners from UK stem from the 3% of applications at the EPO coming from UK, and not all of them need protection in all member states.

Where the £ 2 millions in savings for avoiding litigation duplication for UK firms come from, remains a mystery.

It is surprising, but yet UK firms represent only 3% of the filings at the EPO (DE 15%, FR 7%, CH 5%, NL 4%, IT 3%, SE 2%). Those are official figures from the EPO.

Where has the British industry, I mean the real one, not the financial or the legal one, gone?

So what we have here is essentially a coup by the litigation ‘industry’. We said that a very long time ago (almost a decade ago). Sites like IAM don’t care about the real industry; they’re just sucking up to (and sucking money out of) law firms to publish promotional puff pieces like this one (about Switzerland). They spent years promoting the UPC, ignoring all along the voices of people who actually create things and instead giving the megaphone to Battistelli.

Shame on these parasites. █

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