09.21.17
Posted in Deception, Europe, Patents at 6:23 pm by Dr. Roy Schestowitz
Rule of thumb: everything that the EPO says nowadays is a deliberate lie.
Summary: The EPO wants people to hear just a bunch of lies rather than the simple truth, courtesy of the people whom the EPO proclaims it represents
THE EPO offers nepotism and fast lanes to large corporations. It panics when the public finds out about it and constantly lies about the matter, stating that it protects SMEs, small inventors and so on. The European Digital SME Alliance has already refuted some of these lies, but that wasn’t enough to make the lies stop.
As a matter of priority, even though it’s past midnight right now, we’ve decided to compose a quick rebuttal/response to today’s EPO lies (disguised as ‘study’, as usual). What a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.
“hat a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.”The latest lie was promoted in Twitter in the late afternoon. I responded by stating that the “first EPO announcement in more than a month spreads a lie, the famous “SME”-themed lie [in which the EPO] makes up more “SME”-themed lies in order to sell the [other] lie that UPC is good for SMEs. See last paragraph.”
Yes, I used the word “lie” quite a lot. It’s as simple as this. They lied deliberately.
The official ‘news’ item (epo.org link), which quotes the ‘king’, as usual (self glorification), ends like this:
They also highlight the benefits that SMEs can expect from the planned Unitary Patent. These include savings in time and money, as well as increased legal certainty across the EU market.
That’s a lie. Even insiders know that it’s a lie and yet later in the day (earlier tonight) the Liar in Chief, Battistelli, promoted (epo.org link) the same Big Lie that SMEs want the UPC (it would kill them). From his closing paragraph:
As we look to the future of SMEs and patents, the case studies underline the significant role that the Unitary Patent and Unified Patent Court are set to play in IP strategies. Many of the SMEs featured talk about how the cost-effectiveness of the Unitary Patent and the jurisdiction of the Court will help them expand into other European markets, previously unconsidered by those same companies. Potential savings of up to 70%, a simplified application process with the EPO acting as a one-stop-shop and greater legal certainty will all prove attractive features of the UP and UPC. So, whether they use the Unitary Patent or the classical European patent, or a combination of both, the future holds a wealth of opportunities for SMEs to make the most of patents. It is our hope that these case studies will help increase understanding of how IP can play a fundamental role in the success of SMEs.
That’s a lie again. It’s a lie that the EPO promoted in another tweet that said: “This publication gives you full access to twelve case studies on the benefits of IP for #SMEs http://bit.ly/SMEstudies2017 #IPforSMEs”
They even came up with a hastag for it: #IPforSMEs
It links to this page (epo.org link), which gives the veneer of a ‘study’ to something that’s a lie to the very core.
“So don’t expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance).”First of all, the UPC isn’t happening. The UPC Preparatory Committee has in fact just officially admitted that their plan is derailed (no schedule) due to the situation in Germany. Team UPC wrote about it some hours ago. The best spin they could come up with was this: “The Preparatory Committee of the Unified Patent Court (UPC) has today published a short update, in which it notes that the pending case in the German Federal Constitutional Court will cause delay to Germany’s ratification of the UPC Agreement (UPCA) and the Protocol on Provisional Application (PPA) and concludes that it is currently difficult to predict any timeline for the start of the new system.”
So don’t expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance). Even observers in the field know damn well that the UPC would be an SME killer. There were several comments to that effect in IP Kat on Thursday (today). Well, after the site stopped covering the scandals we rely on comments there; the authors/Kats (who now include CIPA) certainly won’t say anything negative about the UPC.
“What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP?” (Unitary Patent)
That’s what the first comment (relating to the earlier ones) said:
Thanks to Proof of the pudding for his interesting contribution on the law applicable for infringement.
I have a further question with respect to validity, which is also to be decided by the UPC.
What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP? In other words, in case of conflict between decisions of the UPC and the TBA.
At the latest conference on the UPC in Munich, Sir Jacob made it clear that for him the UPC will be the leading court in Europe. In other words, the UPC decisions should prevail. By doing so he forgets that there are also other non-EU member states at the EPO. And they also deserve some respect.
One example: it is abundantly clear that the boards of appeal of the EPO have taken a strict stance in respect of added subject-matter. What if the UPC waters down the requirements? This thought is not abstruse when one looks at certain national decisions in this respect.
The UP being a patent to be granted by the EPO, the examining and opposition divisions are bound to follow the case law of the boards of appeal, and especially that of the enlarged board. The strict stance will be maintained be it only for this reason.
If the UPC is more lenient in the matter, which is to be expected, the only way to have a patent scrutinised strictly on this point is to file an opposition at the EPO. Otherwise it might become difficult to have a strict view on the matter. That proprietors prefer a more lenient way is obvious, but the opponents will want exactly the opposite.
At the recent INGRES Conference reported in another blog on IPKat, Mr Hoying made an interesting comment. According to his view, “Art. 54(3) EPC [is] a big problem which leads to multiple patents for the same invention (and – via divisionals – unacceptable uncertainty of third parties). Why can EPO and Dutch courts not read “the content of European patent application” broader? The skilled person should always read (when reading for Art. 54(3) EPC purposes) with the common general knowledge and consider each combination with the common general knowledge as disclosed”.
This is to me a clear attempt to water down the requirement for novelty which is goes like an Ariadne thread through all decisions of the enlarged board, novelty, added subject-matter, priority, divisional applications and disclaimers.
If the UPC follows this line, then we can say good bye to certainty in this matter. Is this really want is good for the users of the system? For US companies yes, as they have never understood the problem, for European companies, and especially EU and SMEs among them, certainly not.
In any case, the uncertainty will remain. And to me, this is not good for business, unless it has deep pockets.
By the way, at the latest conference on the UPC in Munich, Sir Jacob made it also very clear what he thought of opposition divisions and the boards of appeal: an opposition is playing waiting for Godot! This is not very kind, to say the least.
To me, the problems with the UPC are not only when it comes to infringement as exemplified by Proof of the pudding, but also when it comes to validity.
Then, in reply to it, someone recalled Battistelli’s attack on TBA and said: “I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance.”
To quote the whole comment:
I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance. They may potter on for a while in Haar but their glory days are over.
The independence has been so far eroded despite or perhaps as a result of the fig-lesf reform in 2016 so that they can no longer be seriously considered as an independent judicial instance. The “President” of the Boards of Appeal cannot even appoint his deputy without the approval of the President of the EPO (nota bene: the EPO President and not the Admin Council has the final say here). The President of the EPO also has the final say over the promotion of Board members.
The plan of the EU manadarins seems to be to replace the EPO Boards of Appeal by the UPC. That much is clear from Jacob’s comments.
The next one said this:
The Boards of Appeal are likely not to survive the upcoming decisions of the German constitutional court, be it only because the Enlarged Board itself in a recent and disastrous disciplinary case stated it was under the influence of the President of the office.
This entirely changes the situation which prevailed for decades, when earlier decisions rightly concluded that the members of the Boards were judges in all but name.
As the next and final comment put it, “revocation actions at the UPC are likely to be an order of magnitude more expensive.”
It explained how the UPC would crush SMEs — something we have said repeatedly for years.
Here is the full comment:
Hmmmn. If that is true, then we could be looking at a very dark future indeed.
Oppositions at the EPO could hardly be described as a “low-cost” exercise. However, on any realistic assessment, revocation actions at the UPC are likely to be an order of magnitude more expensive.
It is therefore all too easy to envisage disastrous consequences for SMEs (and the public) across Europe if the UPC becomes the only forum for revoking European patents. That is, if the cost of knocking out a “bad” patent that has been asserted against you becomes prohibitively expensive, and the market for litigation insurance has (predictably) failed to materialise, how do you stop the “trolls”?
There is another factor could make this a “perfect storm” that could devastate important areas of industry across Europe, especially those that are largely populated by SMEs. That is, we need to consider that the management of the EPO has, in recent years, engaged upon a drive to grant as many patents as possible. It is clear to anyone who has been paying attention that this drive has involved a “light touch” approach to examination… thus greatly increasing the likelihood that patents will have been granted with overly-broad claims, or perhaps even no valid claims at all.
So, we could end upon with more “bad” patents and the prospect of hugely increased costs for knocking out such patents. Who would that benefit, I wonder?
Whilst I am very reluctant to believe in conspiracies, even I have to admit that the actions of the current EPO management (grant rate forced ever upwards, Boards of Appeal hobbled, chances of the opposition procedure surviving the constitutional complaints in Germany correspondingly decreased…) all seem to be tailor-made to benefit only a certain section of the patent ecosystem. We shall just have to wait and see whether this is the result of accident or design.
The last paragraph (above) is key. It spares us the need to once again explain why UPC would be an SME killer, contrary to what the EPO claimed 5 times today (new page, news item, blog post and 2 tweets).
It will actually be news when the EPO stops spreading lies. █
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Posted in Apple, Asia, Microsoft, Samsung at 3:42 am by Dr. Roy Schestowitz
From manufacturing to merely taxing manufacturers?
Summary: The high cost of China’s new obsession with patents and the never-ending saga of Samsung (Korea), which gets dragged into courts not only in the US but also in China
THE unit once owned by Google (now Lenovo) — namely Motorola‘s mobile business — is in the news again. IAM says that the judge who oversaw Microsoft’s patent war on Linux (Android/Motorola) is upset that Britain now enables patent trolls to operate in London (we wrote a lot about this decision at the time). Huawei, a Chinese giant and leading Android OEM, was attacked by Ericsson’s patent troll. As IAM puts it:
US district court judge James Robart has taken aim at the decision handed down by Justice Colin Birss in the high profile London High Court SEP/FRAND case of Unwired Planet v Huawei, decided earlier this year. Speaking at the annual IPO meeting in San Francisco yesterday, Robart – who handed down the famous Microsoft v Motorola decision in 2013 and sits in the Western District of Washington – said that Birss was wrong to offer specific royalty rates for the technology in question, rather than offering a range, and stated that he did not expect the judgment to be particularly influential in US courthouses.
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Robart’s claim that the Unwired decision wouldn’t have much influence over US courts has previously been made by former Chief Judge for the Federal Circuit Paul Michel who told this blog after the London ruling was handed down that the US legal system was traditionally inward looking and so rarely paid much heed to overseas cases. Of course, judges around the world often disagree on key areas of patent law – the Supreme Court’s rulings in several patent eligibility cases has meant that the US is out-of-step with many jurisdictions in sectors like medical diagnostics – but Robart’s comments highlight the degree to which the law in FRAND licensing remains unsettled.
This decision ought to have been a wake-up call for Huawei, Lenovo (now holding Motorola’s ‘assets’), and China in general. Patent maximalism harms them everywhere. IAM also wrote about this collapse of a Chinese company that wrongly relies on patents rather than production. To quote:
Sanan Optoelectronics failed to take over Osram after having its bold $8.2 billion bid rebuffed late last year. But the Chinese LED maker has turned to the patent market to shore up its IP position, most recently buying a pair of portfolios from Sony. As increased scrutiny from regulators in both Europe and the United States threatens to scuttle Chinese firms’ more audacious M&A endeavours, there is still significant scope for them to acquire IP in smaller-scale deals.
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A USPTO database search turned up just one previous example of Sony transferring patents to a Chinese entity. In 2015, it assigned six imaging-related assets to Hikvision, a video surveillance company whose controlling shareholder is a state-owned enterprise. So it appears to be a relatively rare occurance. Throughout this year and going back to 2015, Sony has steadily transferred LED-related assets to JOLED, an entity which was formed to combine the OLED functions of Sony, Panasonic and Japan Display in 2014. The Sanan sale perhaps shows that Sony has identified assets in the technology area which are not needed by its spun-out business but can find willing buyers on the open market.
As we said here many times before, this strategy of China’s patent gold rush (with government support/backing/financing) is going to be self-destructive. China is, indeed, becoming a patent trolls hub (self harm). IAM wrote about it the other day in relation to Samsung coming under fire. Shortly beforehand, Florian Müller wrote about the Apple v Samsung design patent case — a case which was discussed some days ago:
About a month and a half ago, Judge Lucy Koh of the United States District Court for the Northern District of California held that Samsung had not waived its “article of manufacture” argument in the first Apple v. Samsung case. That was another step forward for Samsung in its quest to get the damages award reduced. But prior to ordering a new trial on design patent damages, Judge Koh ordered briefing on various questions to be resolved first.
Last week, the parties filed their answers to the court’s questions (Apple, Samsung). Samsung argues that Apple has the burden of proof and that the only way the damages question could be resolved without a new trial would be for the court to find an evidentiary failure on Apple’s part. Apple refers the court to the Solicitor General’s Supreme Court brief. According to Apple, after a prima facie showing regarding the article of manufacture that infringes a design patent, the burden of proof is on the defendant to show that a component of that product is the appropriate basis for a disgorgement of infringer’s profits. While I tend to consider Samsung’s proposition better policy, I have no idea to what extent Judge Koh may be influenced by the DoJ’s Supreme Court brief.
Design patents were certainly on the line after the case had been escalated to the Supreme Court and then sent back down to lower courts. As one publication put it the other day:
The U.S. Supreme Court furthered a legal dispute last year as it sent a patent law case involving the two biggest smartphone makers, Apple and Samsung, back to lower courts. Intellectual property experts are now looking to those courts to better define an “article of manufacture” and determine how to place value on individual features in a complex device.
This case seems like it has lasted forever (so far). The only party happy about it is the patent ‘industry’, which is wasting time bickering over patents instead of creating something. █
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Posted in America, Patents at 2:59 am by Dr. Roy Schestowitz
Forget these photo-ops, he doesn’t work “for the children” (patent indoctrination starts early)
Source: USPTO’s Leadership blog
Summary: Even though the burden of proof ought to be on one who grants a monopoly, the legal costs are being offloaded onto those who challenge an erroneously-granted monopoly (even if the court sides with the challenger)
YESTERDAY we wrote about a bogus Google patent making its way through the system. The Polish challenger could not afford legal advice and therefore it seems likely that Google will get its way. Such is the nature of the system today and it seems to have just gotten worse. As one firm put it a few days ago (emphasis below is ours):
The US Patent and Trademark Office (USPTO) recently began making applicants who challenge agency rulings on trademarks and patents in district court pay the attorney fees and expenses of the agency, regardless of the case’s outcome. This was supported by the Fourth Circuit Court of Appeals for trademarks in 2015, and more recently by a panel of the Court of Appeals for the Federal Circuit for patents in Nantkwest, Inc v Matal (June 23 2017). However, the Federal Circuit appears to be having second thoughts, as in August 2017 it vacated the Nantkwest panel decision of its own accord and ordered a rehearing by the full court.
This is really bad. So it’s going to get a lot harder for anyone other than large corporations to point out errors in examination. In addition to this, there’s now a big lobby (led by trolls and parasites) against PTAB, which has made challenges more affordable.
Whose system is this and what is it for? It was supposed to correctly issue patents and revoke/reject applications where triviality/prior art, for instance, could be demonstrated/shown.
The USPTO grants patents which certainly look like parody sometimes. Consider this example of a patent, spotted by Dennis Crouch the other day. Notice the length:
Thought pioneer Dan Abelow fits within an interesting designation. So far in 2017, his U.S. Patent Application No. 2012/0069131 – mysteriously titled “Reality Alternate” – is the Most-Oft examiner cited U.S. prior art reference. The document – now patented as U.S. Patent No. 9,183,560 – covers a method of providing “a portal for a user … to be present simultaneously in two or more different non-fictional alternate realities that are distinct from a non-fictional physical reality of the user.” [Here, I’m looking at Examiner citations rather than those submitted by Applicants]
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In addition to being written in a way that draws diverse connections (helpful for obviousness conclusions), the reference is also 750 pages long! (The patentee paid an extra $4,000+ in filing costs for the extra page length). One of the best patent attorneys in the country – David Feigenbaum – filed this case and helped push it through to issuance.
What has become of this system? If it openly discriminates against those who are without deep pockets, then certainly it will promote the perception of protectionism (for the rich) rather than innovation. █
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Posted in Asia, Patents at 2:26 am by Dr. Roy Schestowitz
De-storying the destructive strategy of destroying one’s competitors (by litigation).
Summary: The Board of Directors of DSS enlists a man from Singapore, whose lack of technical background suggests that the company is still more of a bully than an innovator
Serial litigator DSS is at it again, hiring non-technical people as its real business collapses. For background, read this 2012 article about DSS (comparing it to Vringo, a patent troll).
According to this press release and form (8-K), DSS turns to Singapore, which harbours some patent trolls (not just tax evaders, having become one of the top 5 places for people to pursue tax havens in), and hires this man:
While Chan does not appear to have much of a background in technology or intellectual property, his comments when appointed as a board member suggest that his focus is on the operating part of DSS’s business….
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Today’s incarnation of DSS is the product of the first known merger between an NPE (Lexington Technology Group) and an operating business. Ronaldi, who led the previous standalone patent licensing business, took over as chief of the merged entity in 2013.
It’s true that DSS may still have some products, but those are gradually going away as the company turns to serial litigation (“NPE” is a euphemism for patent troll). Earlier this year it filed lawsuits in the Eastern District of Texas.
Meanwhile, over at IP Kat there’s this new puff piece about IPOS, Singapore’s patent office. █
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Posted in Europe, Patents at 1:38 am by Dr. Roy Schestowitz
Summary: The reality of software patents in Europe and what a Unified Patent Court (UPC) would mean for these if it ever became a reality
“Having to inspect the patent database before writing a single line of code, that’s not what I call Happy Programmer’s Day,” Benjamin Henrion wrote the other day, adding that “it does not change much to the fact that the EPO and al [sic] still forces you to read their invention garbage.”
The EU rejects software patents, but the EPO flagrantly disobeys the rules, instructions, common sense etc.
Henrion took note of this new article from an EPO-friendly site, relaying the words of “Francisco Mingorance [who is] executive secretary of IP Europe, a lobby group representing European technology companies and research institutes.”
“Open standards and Francisco Mingorance do not go well in the same sentence,” Henrion wrote. “We now await a communication from the European Commission on FRAND licensing this autumn,” he added. FRAND is a euphemism for patent traps inside standards.
To say the least, Mingorance is an enemy of programming. He used to work for the Business Software Alliance (BSA), a pro-FRAND, anti-FOSS, pro-software patents lobby (and the whole bundle of Microsoft lobbying).
At the moment, the main concern we have is that Unitary Patent lobbying threatens to bring software patents to more countries, even countries which explicitly disallow software patents. We wrote many articles about that before.
There’s one particular comment in IP Kat which reinforces our views about the UPC. The comment is very long so its author was prevented from posting it (or rather having it published) — to the point of stating: “It would be nice to see comments appearing a little sooner on this thread. There is still a lot to discuss (including the points made in comments that I posted over 9 hours ago!).”
Here is the comment in full, posted in fragments as follows (with emphasis added):
OK, so my later comment from yesterday eventually appears, but not the earlier, more substantive one. I shall try again (in two parts).
Part 1:
Wow, not even a deliberate, glaring error in my first comment from yesterday can provoke a response! Either no one cares or no one is watching who has a thorough understanding of EU law.
As decided by the CJEU in C-274/11, “it must be concluded that the competences conferred by Article 118 TFEU fall within an area of shared competences for the purpose of Article 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Article 20(1) TEU”.
Thus, the hypothetical arguments based upon Article 118 TFEU and “traditional” EPs don’t work… meaning that more subtle arguments need to be deployed if incompatibilities between the UPCA and EU law are going to stand up.
OK, so my shorter comment makes it through quickly but my longer, more substantive comment still does not appear. I shall assume that the problem is length and not content and will therefore have another go, breaking down my comments even further.
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For me, the major issue with the Unitary Patent Package has still got to be the (impermissible) retroactive application of new / different law to pre-existing cases. The fact that the UPC would (in theory) be free to apply the infringement law of the UPCA to “traditional” EPs in fact makes the effects of retroactivity a lot worse.
To illustrate, consider a pending EP that has the same claims for enough EU Member States to qualify (in theory) for unitary effect. Which law of infringement would you say will be applied (e.g. in the UK) to the claims of that EP, once granted? To me, it seems that there are, in fact, multiple choices.
(1) In this scenario, a request for unitary effect is filed after the patent is granted.
The law of infringement applied by the UPC (the only litigation forum for the “unitary” patent) will then be dictated by Articles 5 and 7 of the UP Regulation. For the sake of simplicity, we shall assume that the patent proprietor has no residence or place of business in the Participating Member States, meaning that the UPC will apply German national law for the purposes of determining infringement.
(2) In this scenario: unitary effect is not requested; no opt-out is filed; and the “traditional” EP patent (the UK validation, plus a handful of other validations) is litigated at the UPC.
Which law of infringement will the UPC apply to the “traditional” EP? Whilst this is a tricky question to answer, we can apply some common sense to work out the most likely result.
Firstly, the UPC will not be bound to apply the same national law as under scenario 1. This is because the UP regulation does not apply to “traditional” EPs.
Secondly, in all likelihood, the UPC will apply a single law… as otherwise there would be no benefit to using a supposedly “unified” court!
Thirdly, Article 24 UPCA provides a hierarchy of laws. With no overarching EU law to consider (as the UP Regulation is irrelevant to “traditional” EPs), the next stop for the UPC will be the UPCA itself (Article 24(1)(b) UPCA).
Thus, in all likelihood, the UPC will apply the infringement law of the UPCA (Articles 24 to 30 UPCA) to all validations of “traditional” EPs that are litigated in that forum.
(3) In this scenario: unitary effect is not requested; no opt-out is filed; and the UK validation of the “traditional” EP patent is litigated at the UK High Court.
Here the answer is simple. The UK High Court will apply UK national law for the purposes of determining infringement. There is simply no basis under UK law for the court to do anything else… not least because the provisions of the UPCA have not been incorporated into UK law (instead, a few “tweaks” have been made that only partially align UK law with the UPCA provisions on infringement).
(4) In this scenario: unitary effect is not requested; an opt-out is filed; and the UK validation of the “traditional” EP patent is litigated at the UK High Court.
Here, the same answer applies as under option 3, namely UK national law will be applied for the purposes of determining infringement.
So, for a single, pending EP, there are actually three possible choices of law of infringement (namely German national law, UPCA law or UK national law) that will be applied in respect of a single territory (the UK). More worryingly, the choice of law will be dictated by post-filing actions of the proprietor, ie whether or not unitary effect is requested, whether or not an opt-out is filed (and, if so, whether or not it is later withdrawn) and/or which litigation venue is selected (from the UPC or national courts).
Remember, national laws of infringement have not been fully harmonised with one another across the Participating Member States, nor have they been fully harmonised with the infringement provisions of the UPCA. Thus, it will make a difference to the outcome which law of infringement is selected.
So, the UPCA coming into force will bring the advent of what I like to call “Schrödinger’s patents”, which are pending EPs whose precise effect upon third parties cannot be fully pinned down until they are actually granted and litigated (at a specific forum). As will be evident from the above, until the proprietor has made final, irreversible choices with regard to all three of unitary effect, opt-out and litigation forum, uncertainties will remain as to the law of infringement that will be applied.
Bringing such “Schrödinger’s patents” to life seems to me to be irreconcilable with the principle of legal certainty, and no doubt countless other provisions and principles of EU law (especially fundamental principles relating to the rule of law). But why has this issue attracted so little attention?
It is about time that this changed, I would say. It would be horrible to “sleepwalk” into a nightmare scenario that might become impossible to wake up from.
We certainly hope that patent examiners understand why British software companies, for instance, dread the UPC and oppose it.
Some more EPO articles are on the way. The big series about Battistelli will start quite soon, culminating some time ahead of the quarterly meeting of the Administrative Council. █
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Posted in Deception, Europe, Patents at 12:54 am by Dr. Roy Schestowitz
They got CETA, but they won’t get UPC
Summary: Team UPC continues to overplay its chances, conveniently ignoring simple facts as well as the Rule of Law
THE EPO is quiet. So is SUEPO, the staff union of the EPO, whose Web site has not been updated for a while. On the UPC front, however, spin continues. Left unchallenged, some people out there might even believe it. Team UPC extravagantly lies, exaggerates, and places too much emphasis on perceived positives. Everything else is discarded, ignored, or ridiculed.
As we noted earlier this week, there’s UPC propaganda coming to Canada pretty soon. We can’t help but wonder, why would anyone actually pay to be lied to by Team Battistelli about the UPC in Montreal (Canada)? Maybe to make contacts/connections? A few days ago CIPO wrote: “Only 2 days left to register to the #Montreal roadshow with @EPOorg on Unitary #Patent & Unified Patent Court!”
That’s just basically Battistelli’s right-hand liar. She’ll be spreading the usual lies there. They will have the audience believe that the UPC is coming very soon. Bristows is doing the same thing this week, with staff pretty much repeating themselves regarding Scotland (never mind the reality of Brexit).
IAM’s chief editor also did his thing earlier this week. The UK-based IAM is perfectly happy that the EPO’s declining patent quality (which IAM helps Battistelli deny) brings its beloved patent trolls to Europe. Joff Wild speaks of the UPC again, joined by the term “BigTech” with the usual whipping boy being “Google”. Here are some portions:
And that brings me to patents. As everyone in the IP market knows, over recent year Europe has emerged as a much more important part of the equation for patent owners seeking to assert their rights. For multiple reasons – including the perceived quality of EPO-granted assets, speed to get a decision, the relatively low cost of litigating, the expertise of courts and, crucially, the availability of injunctions – the worsening environment for rights holders in the US is driving more companies to try courts in Germany, the UK and other European jurisdictions. Should the Unified Patent Court ever become a reality that process is likely to accelerate.
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Where that leaves lobbying efforts that seek to water down or eliminate the UPC injunction regime, for example, remains to be seen. My guess is that as long as BigTech identifiably campaigns as BigTech it is unlikely to get much traction. Instead, what it needs are examples of small European companies falling foul of abusive patent litigants – the kinds of stories that it has always been possible to dig out in the US. The problem is that in Europe these are tough to find – precisely because the system is not troll-friendly. Getting around that may be a challenge that even the expertise of Silicon Valley’s best paid public relations advisers and lobbyists will struggle to meet.
Again, notice the term “BigTech”. The patent trolls’ sites (or patent maximalists) are openly demonising technology companies, e.g. those that protect PTAB. It makes it abundantly clear that they, the patent radicals, are against technology. We shall revisit the subject later this week.
The matter of fact is, UPC is a failed project. Even some insiders are willing to admit it now. The Boards of Appeal (BoA) need to stay and regulate patent quality, just like PTAB does at the USPTO. After Battistelli sent BoA judges to exile (as punishment, or simply to warn them) the EPO has the nerve to talk as if everything is fine and dandy. Earlier this week it wrote: “Oral proceedings at the new Boards of Appeal site are planned to start on 9 October” (but without independence for judges).
With Jesper Kongstad leaving in just over a week (end of this month), it remains to be seen if BoA has a future. If the UPC fails, which seems increasingly likely, many hirings will be needed for BoA (not UPC). Can the new (actually old) building in Haar facilitate growth? The only new building is in Rijswijk and Dutch media wrote about it some days ago. If there is something interesting in this Dutch article, it would be worth knowing. We try to keep abreast of the facts ahead of the ‘grand’ opening.
For those who are wondering where the UPC stands, not much has changed since we last wrote about it. Yesterday IP Kat summarised it as follows: “It has been confirmed that the complainant who filed the constitutional complaint against the ratification of the UPC Agreement in Germany was the attorney Ingve Stjerna. Stjerna has long been a vocal critic of the Unified Patent Court, and the complaint reflects some of his earlier criticisms.”
Looking at some of the latest comments at IP Kat, people now debate whether the UPC is “an EU institution” (it most certainly is) and therefore the UPC (which explicitly requires “UK” amid Brexit) is dead by definition.
Here is a comment about that, relaying the question to the CJEU:
If it is not an EU institution, then I do not understand why in the the preamble of the UPCA the following is said:
RECALLING the primacy of Union law, which includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the general principles of Union law as
developed by the Court of Justice of the European Union, and in particular the right to an effective remedy before a tribunal and a fair and public hearing within a
reasonable time by an independent and impartial tribunal, the case law of the Court of Justice of the European Union and secondary Union law;
Furthermore Art 1 of the UPCA states: The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States.
If I understand well, the TEU and TFEU should thus be clearly applicable. Or did I miss something?
Divisions of the UPC can bring forward prejudicial questions to the CJEU, but the the text governing the UPCA cannot be submitted to the CJEU. I fail to understand the logic behind such a position.
Could somebody explain.
They then went off on a CJEU tangent.
One person said about the UPC, “how can the provisions of that Agreement be used to “harmonise” patent law” (they can’t).
Here’s the comment in full:
It’s not that hard to understand, given the limits of the jurisdiction of the CJEU.
In essence, the CJEU can only review the legality of EU Treaties and the (legislative) acts of EU bodies. The UPCA is not an EU Treaty or legislative act, as it is instead an international agreement (that just so happens to be exclusively between EU Member States).
However, this is not to say that the CJEU will have no teeth when it comes to the effects of the UPCA. That is, pursuant to Article 258 or 259 TFEU, the CJEU will be able to assess whether the Member States that are party to the UPCA are fulfilling their obligations under the EU Treaties. Unfortunately for the public, however, such actions can only be commenced either by the Commission or another Member State.
This effectively means that a challenge by Spain (under Article 259 TFEU) might be the only hope of sorting out whether the actions of the UPC (or the Participating Member States) are compliant with EU law.
It remains to be seen which grounds could be raised by Spain under Article 259 TFEU. However, Article 118 (attributing the European Union with exclusivity regarding the creation of uniform IP rights) is an interesting possibility.
In C-146/13, the CJEU held that:
“Notwithstanding the fact that the contested regulation contains no list of the acts against which an EPUE provides protection, that protection remains uniform in so far as, regardless of the precise extent of the substantive protection conferred by an EPUE by virtue of the national law which is applicable, under Article 7 of the contested regulation, that protection will apply, for that EPUE, in the territory of all the participating Member States in which that patent has unitary effect”.
In other words, the CJEU held that Art. 118 TFEU was not contravened because EU law (the UP Regulation) has been used to achieve (partial) harmonisation, through the designation of a single, national law.
However, this would appear to mean that failure of the UPC to apply a single, national law (as determined under Art. 7 of the UP Regulation) would therefore not only contravene the Member States’ obligations under the UP Regulation but also their obligations under Art. 118 TFEU.
This puts an interesting “spin” on the law of infringement to be used under the UPP, doesn’t it?
For a start, it would appear that the UPC would only be able to refer to the infringement provisions in the UPCA to the extent that those provisions are fully incorporated into the national law selected under Arts. 5(3) and 7 of the UP Regulation. This means that the UPC, as well as all patent attorneys, will need to become experts on the extent to which this is true in each of the relevant Member States… and also what the significance might be of seemingly contradictory / non-identical provisions in national laws.
On the other hand, it would also seem to force the UPC to issue judgements for “traditional” (not opted out) EPs on a country-by-country basis. This is because the UP Regulation does not contain any provisions on the law to be applied to “traditional” EPs… meaning that there is no basis under EU law for the law of infringement for those EPs to be “harmonised”. Also, attempts by the Member States to “go it alone” with harmonisation of the law with respect to such EPs may well contravene the provisions of Art. 118 TFEU.
To put it another way, as the UPCA is not part of EU law, how can the provisions of that Agreement be used to “harmonise” patent law (for UPs or not opted out EPs) within the EU without infringing Art. 118 TFEU?
Spain was then brought up too. “Spain could think about a further challenge the legality of Regulation 1257/2012,” said the following comment.
Alternatively, Spain could think about a further challenge the legality of Regulation 1257/2012.
As previously mentioned, the impermissible, retroactive effect of Article 5(3) might be one ground for such a challenge. This is because that Article applies new / different laws (of infringement) to pre-existing patents and patent applications, as well as to acts committed prior to entry into force of the UPP. That hardly seems compliant with the principle of legitimate expectations!
Another, very interesting possibility might be alleged contravention of Article 18 TFEU (“any discrimination on grounds of nationality shall be prohibited”) by Article 5(3) of the UP Regulation.
Understanding this ground requires a little thought.
Firstly, Art. 5(3) states that the applicable law of infringement is determined by Art. 7. Secondly, the primary factor to be considered under Art. 7(1)(a) is residence / place of business. For many individual and corporate applicants, their residence / place of business will be the same as (ie equivalent to, or a surrogate for) their nationality.
Thus, the UP Regulation requires the selection of a single, national law based upon a criterion that, for many applicants, will be a surrogate for their nationality.
The final step is to realise that the national laws of infringement are not harmonised. Thus, inventors / applicants that have identical claims, but that have different nationalities, would have different laws of infringement applied to those claims (and hence potentially different results from litigation).
It really is hard to understand how this could possibly be compliant with Article 18 TFEU!
The next comment said:
If it is an EU institution why would it need its own dedicated Protocol on Privileges and Immunities ?
Surely it would be covered by the EU PPI ?
Regarding the situation in Germany and the CJEU, one person said that “here we are back to the other complaints before the German Constitutional Court.”
We are ahead of interesting times, and it might be possible that the CJEU considers the UPCA not in accordance with EU law. In view of the sometimes political nature of the CJEU’s decisions, I doubt that it would blow up the whole system, but it could severely harm it.
In the same vein, there is a further question which could be tricky as well. If an opposition is launched against a UP, can the opposition division be composed of nationals of non EU member states?
This becomes particularly critical if the EP has only been validated as a UP.
One could consider that since the EPO regains competence by virtue of an opposition, then the composition of the OD is irrelevant.
On the other hand, one could also consider that having become, at least in some member states of the EPC which are also members of the UPC, an asset according to EU law, its fate can only be decided by nationals of member states of the EU.
If the patent is revoked, then there is no revision possible. And here we are back to the other complaints before the German Constitutional Court.
This question was raised at the latest conference on the UPC in July in Munich, and has up to now not received a reply.
More on CJEU:
“the sometimes political nature of the CJEU decisions”? Are you suggesting that the CJEU might not demonstrate complete independence from the executives of the Member States and/or the executive arms of the EU?
If there is a (perception of) lack of independence, then perhaps it is high time that someone took a close look at the conditions of appointment of the judges of the CJEU, in order to see how well the CJEU fares regarding internationally recognised “best practice” for achieving judicial independence. 
Speaking of “political decisions,” the next comment talked about Spain again:
I do not want to claim that all decisions of the CJEU are more of political than strictly judicial nature. It is a minority of decisions, but the manner in which the CJEU has dismissed the second complaint of Spain against the UPC is an example to me of more political decisions.
Any reason not to consider Spain’s complaint were good to dismiss the claims. Some of the questions were however quite specific.
In decisions on the correct application of directives it is certainly not politic. Plenty of those have been published and commented on this blog.
The bottom line is, for those lacking the time or background to read all the above, there are multiple aspects and levels that act as barriers to UPC, ranging from central to pertinent (e.g. Spain, UK, Germany and even Poland). Don’t be misled by EPO staff whose job is to lie about the UPC. No doubt the Canadian press (and maybe European press as well) will soon publish some lies about the UPC. The EPO has a sick habit of paying the media for puff pieces, including patently untrue statements. █
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