05.18.19
Unified Patent Court Won’t Happen Just Because the Litigation Microcosm Wants It
Summary: Unified Patent Court (UPC) hopefuls are quote-mining and cherry-picking to manufacture the false impression that the UPC is just around the corner when in reality the UPC is pretty much dead (but not buried yet)
THERE are some topics that refuse to go away; Rather than focus on EPO abuses and USPTO reforms we’re often dragged back to the UPC, which died about 2 years ago (summer of 2017). António Campinos never mentions it anymore. The EPO very rarely uses that acronym (or even speaks of “unitary” anything) because deep inside they know it’s doomed. The litigation ‘industry’ hoped it would usher in a plaintiff-friendly system that bypasses national laws, encompassing raids, embargoes and even software patents in Europe (those are typically rejected by European courts, as per national laws). Even the United States, the ‘home of software patents’, barely tolerates such patents anymore (courts almost always cite 35 U.S.C. § 101 after defendants leverage it).
Let’s be frank. We never liked the UPC, even when it was called “EU” or “Community” (way before “unified” and “unitary”). One need not be against the EU or against communities or against unity to openly oppose the UPC. I’m personally very pro-EU (it’s no secret), but at the same time I’m strongly against the UPC, which is inherently an EU project. Similarly, myself and many others oppose the Copyright Directive not because we oppose the EU but because it serves to discredit the EU.
As usual, as with most things (like copyright law), someone stands to benefit from changes. Law firms, especially those that have many litigators (offensive), want as many lawsuits as possible. That’s understandable. Right now there are arms manufacturers drooling (maybe even literally) over wars in Iran and in Venezuela.
Just before the weekend JUVE’s editor (M.K.) spoke of a new puff piece from their English site. Recall "JUVE Creates English Site, Promotes Unified Patent Court (UPC)" (01.20.19). It’s a puff piece in “interview” form — similar to those Kluwer Patent Blog used to issue aplenty with Team UPC minions. This one is pro-FRAND, pro-UPC and all those usual things patent trolls absolutely adore.
As I put it last night, “JUVE continues to lobby for UPC on behalf of its subscribers base. They want lots of litigation with patents. A selective quote as a headline in JUVE shows the sheer bias of the site. It’s not news, it’s lobbying thinly disguised as ‘news’, as usual from Amy Sandys, amplifier of Team UPC liars.” (alluding to her previous work in that site)
“JUVE Patent interviews UK Supreme Court judge, David Kitchin,” the editor said. “We cover FRAND, injunctions, and why Kitchin thinks the UPC project is still likely.”
Those three things are connected because they’re weapons of patent aggressors and trolls — those who stand to benefit most from the UPC, along with their legal representatives.
“This one is pro-FRAND, pro-UPC and all those usual things patent trolls absolutely adore.”The headline says, in quotes, “The UPC has the support of UK judges,” but here what he actually said:
Do you still believe in the UPC?
The UK is fully committed to the UPC. The government believes that the UPC and Unitary Patent project are an important way to simplify the protection of innovative products and processes across the Union. It has the support of the UK judges in this field too.
He was talking for jurists, not Brits in general. British businesses are not “fully committed to the UPC” and many speak out against it. Funny how he then speaks for the government too (he knows its beliefs, maybe alluding to IPO’s actually) and then speaks for all judges. Kitchin is one of several judges in the UK Supreme Court; so his words are akin to those of one single player in a football team, alleging to be speaking for the FA, for his team, and maybe for a whole city/country. We saw something similar in a Bristows post at IP Kat earlier this month (one German judge).
Suffice to say, Team UPC is all jubilant about this interview and is citing it, e.g. in Twitter; the article speaks of mere will (of one person), no actual news, no progress.
And whose will? Obviously, those looking to profit from it, those who share corridors at events that are echo chambers. This judge’s argument boils down to, “I want it, so it’ll happen” — how so typical of UPC boosters. What about other judges? They weren’t even asked for their views on this. Maybe ask the Boards at the EPO about it, only to realise that virtually all judges there oppose the UPC (it makes them redundant and obsolete).
Facts and desires are often mutually-contradicting; such is the case when it comes to almost every article about the UPC. Just look who’s writing these articles! Law firms, directly or by proxy. Nobody else gets given a voice or a platform whilst apathy (or misunderstanding of the underlying issues) gets exploited by Team UPC. This morning we saw this new press release from a very large American law firm. To quote from it:
Pegram is a leading expert on patent reform and the EU Unitary Patent & Unified Patent Court. He served as a staff member and then editor-in-chief of The Trademark Reporter, where he worked with members of the Trademark Trial & Appeal Board to establish the basis for the Board’s Manual of Procedure. After the Copyright Law was rewritten in 1976, he advised the president of the Special Libraries Association and clients regarding compliance with the copying and fair use provisions.
So he keeps changing occupations, including a media career. A lot of people who cover patents in the media even admit to me (as recently as a week ago) that they write for lawyers. What kind of journalism is that? Admission of bias upfront?
Earlier today we saw this new article from Alex Woolgar. Can one ‘borrow’ foreign patent law to sue a company in its own country using these ‘imported’ laws? That’s what UPC strives to achieve, but here’s what happens in practice (here in the UK):
Another judgment, another instance of the English court seizing jurisdiction in a patent dispute. In Ablynx NV and Anor v VHsquared Limited and Ors [2019] EWHC 792 (Pat), His Honour Justice Hacon (sitting as a High Court judge) has provided a useful judgment concerning the application of the Brussels Regulation to patent disputes where there is also a purported choice of jurisdiction by contract. Even in circumstances where the parties have made such a choice, a forum shopping defendant might well find the shelves to be bare.
Ablynx is the exclusive sub-licensee of certain fields of use for three patents (now expired) protecting an invention relating to immunoglobulins derived from camelid antibodies [“camelid” refers to several even-toed ungulates, not just camels, so we can leave puns involving humps and deserts at the door, please]. Broadly speaking, the Defendants were licensees in relation to other fields of use. The Defendants are alleged to have infringed the UK designations of the patents during their term by encroaching on Ablynx’s field of use. This allegedly provided an illegitimate springboard for work completed following the expiry of the patents. There is ongoing litigation relating to the same subject matter in the Netherlands and Belgium, and there was earlier litigation in the Netherlands.
[...]
Therefore, the question of jurisdiction turned simply on the meaning of “concerned with…the validity of patents”.
Different countries have different patent laws; this may actually be a feature rather than a fault/defect because different nations have different specialty and so their patent priorities/strategies should vary; a country that exports a lot of fruit, for example, might rightly oppose patents on seeds, plants and all that malarkey. The UPC mindset wants to blur everything for the sole purpose of expanding the scope of litigation (geographically) and scope of patents (bypassing national laws). It’s not hard to see to whose advantage. █
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