03.03.18

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EPO Annual Report Will Dominate the News Next Week, Whereas Unitary Patent (UPC) is a Goner

Posted in Europe, Patents at 1:18 pm by Dr. Roy Schestowitz

UPC fluff and bluff has become the norm, but it’s detached from underlying facts

Bluff

Summary: The EPO’s fluff will be seeded in news sites next week, distracting from profound declines in quality and the demise of the UPC (a failed gamble of Battistelli)

THERE will be a lot of press coverage about the EPO next week. Plenty of puff pieces about the annual report, parroting the PR people rather than doing journalism with fact-checking and critical thinking. That’s fine, we’ve grown accustomed to it and some of the publications that participate in this PR charade got paid by Battistelli (at the expense of EPO stakeholders).

“They try to trick British politicians.”What we won’t be hearing much about next week is the UPC. Team UPC will get a lot louder again around Easter time. A patent attorney based in Germany (with “a focus in patent infringement and licensing” i.e. enforcement a la UPC) doesn’t accept the death of the UPC; nobody in his position likes to think that Brexit among other things (FCC, EPO scandals etc.) kills the UPC for good. He wrote: “[Theresa] May on #ECJ and #Brexit : ‘the jurisdiction of the ECJ in the UK must end’ vs ‘if we agree that the UK should continue to participate in an EU agency the UK would have to respect the remit of the ECJ in that regard’. what does that mean for #UPC Full text: https://blogs.spectator.co.uk/2018/03/theresa-mays-our-future-partnership-speech-in-full/ …”

It’s pretty obvious what it means. He also relayed Mathieu Klos as saying (German users’ tweets in English): “2 days in London with talks tonine patent firms brought no clear picture whether the UK will finalise the remaining steps of #UPC ratification. Range of predictions varies from “it will happen around Easter ” to “totally unpredictable because of cabinet Brexit discussions””

“Without the UPC, there would still be EPO and EPC. There would be Boards of Appeal too, i.e. judges.”That former group would be liars like Bristows and cohorts who fabricate statements and resort to dirty tricks. They try to trick British politicians. Don’t pay much/any attention to them. They just lobby for their financial interests, sometimes anonymously and often while deleting opposing views from sites (they don’t respect freedom of expression in comments).

There’s this new guest post by Matteo Dragoni, a Stanford TTLF Fellow. That covers the UPC and EPC, noting that it didn’t quite work as intended (NPOs are still very much relevant). To quote:

Second, the current EPC system has established a “regional” patent system which is better than the PCT system, but it is still far from having eliminated all the economic/bureaucratic hurdles to patenting. It is true that European patents, once granted, can be validated/extended—and so recognized—in every single EPC country, but such validation/extension process comes at a cost. The patent often needs to be translated, some other taxes must be paid and the help of a local patent attorney is required. Annual patent fees must also be paid or the even the local patent expires. Once the European patent is granted, the patentee usually has 6 months to decide the validation/extension countries.

Since the grant of a European patent usually happens 3-4 years after the patent application has been filed, this means that an entity might not be ready to extend or validate the patent in many other countries, and if it has to drop some countries, it usually does so with less appealing, small, markets, most of which are the accession States considered in Hall and Helmers’s article. Moreover, a European patent usually reduces costs only if the patentee is interested in having patent protection in at least 3-5 EPC Countries (depending on the local costs and fees).

The above also answers a bit to Risch’s concern that a “unified” patent protection might not imply a “strengthening” of IP protection. As the situation is now, the European patent merely grants a bundle of nationally regulated patents that, once validated/extended, are governed by national rules and are subject (for some aspects) to the exclusive jurisdiction of national courts. This makes the patent rights obtained through a European patent costlier but also quite strong: it is not so cheap to obtain and validate/extend a European patent, but it is also quite expensive to invalidate the validated/extended European patent in all the single EPC jurisdictions.

Without the UPC, there would still be EPO and EPC. There would be Boards of Appeal too, i.e. judges. The rush to ratify something like the UPC is nothing but a wet dream of Big Litigation firms, which not only promote UPCA but also wrote a lot of UPCA. It’s a failed coup and this coup has already caused tremendous damage to the EPO.

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