05.01.18

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People Are Belatedly Asking All Those ‘Awkward’ Questions About UPC and the Lies Told by Team UPC

Posted in Deception, Europe, Patents at 5:26 am by Dr. Roy Schestowitz

Team UPC is ‘sanitising’ (deleting) comments it does not agree with (or aren’t good for Team UPC’s financial agenda), but can it hide the truth forever?

Alex Robinson

Summary: In spite of propaganda efforts (and attempt to suppress comments from UPC critics), people do manage to speak to one another about UPC lies and false underlying assumptions (e.g. that industry — not a niche of law firms which profit from litigation — longs for the UPC)

LESS than a week ago the bizarre (but expected) thing happened when Sam Gyimah tried to score political points with patent extremists. It was expected because Lucy had made a promise two years ago, causing backlash from rationalists and bafflement even among patent extremists. How can the Unified Patent Court (UPC) ever work in the UK after Brexit? The EPO has many member states that aren’t in the EU (hence Brexit has no real impact on Britain’s EPO membership, which predates the EU), but the same cannot be said about UPC. We have since the announcement written the following 5 posts:

We have been rather amused by comments — the few of them that made the cut anyway. We’re pretty certain that many are being censored because Team UPC already admitted deleting some (and attempted to defend this censorship by insulting people with other viewpoints).

“We have been rather amused by comments — the few of them that made the cut anyway. We’re pretty certain that many are being censored because Team UPC already admitted deleting some (and attempted to defend this censorship by insulting people with other viewpoints).”UPC booster IAM is careful not to say too much about the UPC, especially after getting exposed for receiving money from the EPO’s PR firm (specifically for UPC promotion). Yesterday, IAM’s Adam Houldsworth wrote about “the UK’s ratification of the Unified Patent Court Agreement [saying it was] capturing the headlines in recent days…”

This ‘article’ is actually the tired old promotion of CRISPR patents — something which the EPO’s examiners (in oppositions capacity) famously rejected some months ago. From the outline:

With news of the US Supreme Court’s recent Oil States decision and the UK’s ratification of the Unified Patent Court Agreement capturing the headlines in recent days, patent professionals might be forgiven for allowing a crucial CRISPR-Cas9 dispute to slip under the radar. But they would be wrong to do so. Described by a former Chief Judge as a possible “case of the year” for 2018, the Federal Circuit’s is today hearing an appeal in the dispute between the University of California, Berkeley and the Broad Institute – as well as their respective partners.

We were very surprised to see that Sam Gyimah’s actions received virtually no press coverage. Almost none! Team UPC wrote about it, primarily Bristows with about 4 posts in just a couple of days. “Tweets” mentioned this, not always in a positive way. Here’s one from FFII’s Benjamin Henrion:

I wonder if the UPC UK ratification can still be challenged in front of the High Court. If it does not comply with some ECHR provisions, I wonder why not #upc #uk

Henrion was alluding/linking to this person who covers Brexit a great deal. He did not write an article about this, only a couple of tweets [1, 2] or more:

…going to have to do thread on because this is more than just amusing coincidence… ratification INCREASES jurisdiction of European judges, including some based in Luxembourg, in UK, further integrates UK into European single market, in a new Court which asserts primacy of EU law

2. So Boris Johnson’s signature has just ratified UK membership of a new European court that “shall apply [European] Union law in its entirety and shall respect its primacy”… … when Govt policy is to end the jurisdiction and primacy of EU law in the UK…

“I didn’t think it would be long for the mainstream press to pick up on this,” a law journalist noted, but by “mainstream press” he means a couple of tweets, not actual news coverage. He did not link to an actual press article. We might see some soon.

Writing behind a paywall, a niche publication of patent maximalists said: [via]

After many questions and calls for clarity, the UK has announced its ratification of the Unified Patent Court (UPC) Agreement.

Notice the sole comment there. “And the Brexit deal is negotiated behind closed doors, as most trade deals are in the “democratic” Brussels,” Henrion told them.

“But perhaps the most interesting development/analysis happens in the comments thread in IP Kat (not posts/articles, which have been mostly UPC propaganda for the past couple of years).”As for Team UPC, one member of it wrote: “UK ratification of UPC and discussion about its compatibility with „taking back our laws“ may finally make it into the UK mainstream (as contrasted with legal/IP) media.”

But perhaps the most interesting development/analysis happens in the comments thread in IP Kat (not posts/articles, which have been mostly UPC propaganda for the past couple of years).

Here’s the latest:

Edyta – I think there is no point in analysing the logic of the ratification too much. Civil servants will probably be sorting out peripheral issues like IP in ways which gives the UK maximum flexibility whilst the central issue of the CJEU is worked out. As yet the UK has not developed the ‘principles’ which will guide our future relationship with the EU and therefore we have no idea what our eventual status will be in Europe. I suspect that apart from a few very sensitive areas like the status of EU citizens in the UK it will be impossible to have anything apart from a full departure from CJEU jurisdiction. However we don’t know that at this stage, and so we need to keep plodding along with Brexit keeping all options open.

SMEs are then bought up:

I’m not saying it’s not beneficial to UK SMEs for UK to be in the UPC, but I would like to ask WHY it is beneficial to UK SMEs, if anyone can help me out please?

It’s a lie. It has always been a lie. On Monday evening the EPO wrote: “Do your work with start-ups? These case studies on the impact of #intellectualproperty rights on business success might interest you…”

“Why is Sam Gyimah trying to impress these dangerous patent zealots?”Of course that’s a big fat lie. The EPO has even just used a hashtag for that lie, yet again: #IPforSMEs

The EPO generally believe that if it repeats lies over and over again, some of these might eventually stick.

This next comment from “SMEs and UPC, please stop the nonsense!” debunks the lies from Team UPC and Team Battistelli (specifically a lie about UPC being good for SMEs):

As far as the benefit for SMEs is concerned, be it in UK or elsewhere, one has to remember that the number of EP applications coming from EU member states is 35-40% at best.

As this figure includes all applications, you can guess that the number of applications coming from SME is an order of magnitude lower.

The EPO has published a study showing the benefit for SMEs from the patent system:

http://documents.epo.org/projects/babylon/eponet.nsf/0/FF76F6F0783153B7C12581A2004DA0D2/$File/epo_sme_case_studies_2017_en.pdf

From 12 SMEs presented, there was no British SME in the panel.

It is always tooted that SME can get a greater benefit through the UPC, but beside nice words, repeated like a Tibetan prayer mill, nothing concrete has been presented.

If they want to act against a infringer, the minimum fare at the UPC is 11 000€. If attacked, a counter-claim for nullity has a minimum price tag of 20 000€. I am not convinced that a lot of SMEs are prepared for it. For a while there was even question of a litigation insurance for SMEs. This project seems to have died.

You may thus draw your own conclusions, for any European SME in general, and British ones in particular..

The more these things are debated, the clearer it becomes that UPC is neither possible nor desirable in the UK. Team UPC, a small clique of aggressive law firms (including the one which Battistelli hired to SLAPP me), are the driving motor behind of these lies. Why is Sam Gyimah trying to impress these dangerous patent zealots?

It’s clear why they delete comments. Any debate of actual facts puts UPC in danger.

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