09.09.19

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Patent Charlatans and Frauds Are Doing a Disservice to Europe and to Europe’s Patent System

Posted in Deception, Europe, Finance, Patents at 10:44 pm by Dr. Roy Schestowitz

Thank you for smoking the EPO’s ‘free’ cigarettes

EPO's free cigarettes

Summary: Tax evasion and UPC lies aren’t going to help the integrity of the patent system; au contraire — those are becoming an existential threat to the system being exploited by law firms (and accountants)

IT OUGHTN’T be so hard to understand that the European Patent Office (EPO) relies on its credibility for survival. The U.S. Patent and Trademark Office (USPTO) learned this the hard way and gradually adapted (e.g. respecting 35 U.S.C. § 101). With people like António Campinos and Benoît Battistelli in charge of the EPO, however, hope seems slim. They actively collaborate with predators and abusers. They choose the side of liars and trolls. They abuse truth-tellers and staff representatives. They ignore courts and attack judges. This won’t end well.

Yesterday we saw Accountancy Today moaning that tax evasion for the rich monopolists (via patents) is “still so low” — that’s in their headline!

Another parasitic occupation and a colossal scam? It’s just shameless self-promotion from “Mark Tighe, founder and managing director at specialist tax consultancy Catax” (come to me for your tax evasion needs! I shall figure out how to use patents to deny taxpayers your tax contributions…)

From the article, which was published in a British site:

Patent Box tax relief was phased in from 2013 with the full scheme in place by 2017, offering a reduced rate of corporate tax on all profits made from patents.

In fact, it offers a near halving of the rate of corporation tax paid on intellectual property (IP) related profits to just 10 per cent.

The aim is to incentivise the development of new patented inventions in the UK and build a competitive future economy.

[...]

Just over 1,000 Patent Box claims are made each year, compared to more than 5,600 patents granted on average every year between 2012 and 2017.

The 1,160 Patent Box claims made in 2015/16 had a total value of £754.3 million while the 1,025 recorded so far for 2016/17 are worth £942.5 million. This means the thousands of eligible companies who fail to claim are missing out on six figure sums.

[...]

Happily, patents secured via the UK intellectual property office (IPO) will not be affected by Brexit. More surprisingly, nor will patents obtained through the European Patent Office (EPO) because the EPO is not an EU organisation.

So companies holding patents registered via the UK IPO or the EPO can relax, knowing their patents are still protected and they will still qualify for the Patent Box tax relief.

This “Patent Box tax relief” is a major scam that we covered here many times before, usually in relation to other European countries.

Wouldn’t British Team UPC just love it? It’s not like these people have an integrity; we know whose interests they generally serve…

Regardless, only hours ago IP Kat (British blog) published this post that boosts Team UPC’s lies. IP Kat’s Riana Harvey ended up propping up nothing but the Bristows nonsense and Watchtroll. This comes to show what IP Kat has already turned into: lobbying of the litigation ‘industry’. The cited articles are all bad (under “Patents”); they’re dishonest propaganda and deliberate lies. Just check the comments. In response to the first one (we’ve mentioned this ridiculous piece days ago) one person wrote:

I agree that, if the BVerfG were to dismiss the constitutional complaint, there could be an interesting (theoretical) question about whether the Federal President would be obliged to sign into law the Geman legislation relating to the UPC.

However, I am not sure whether that is the whole story. Just because the Federal President could sign into law legislation that ALLOWS Germany to ratify the UPCA, does this necessarily mean that the Federal President would also be OBLIGED to deposit Germany’s instrument of ratification? Is that not a separate step that would need to be agreed and coordinated with the government?

Regardless of the technicalities of the role of the Federal President, I find it rather fascinating that anyone is still pressing for Germany to ratify the UPC under the current circumstances. This is because the current Brexit deadline of 31 October will have been and gone long before the earliest date that the UPC can possibly (or practicably) come into force. If the UK ceases to be an EU Member State after 31 October 2019, it is difficult to see how the UPCA, which REQUIRES the Participating Member States to be EU Member States, could EVER come into force.

This could turn into a chicken and egg situation, as the preconditions for the UPCA to come into force would not be met … but an amendment to the definition of the Participating Member States (to make the UPCA a valid Agreement again) could not be made until AFTER the unmodified Agreement enters into force.

In other words, it would be totally bonkers for Germany to press ahead with ratification under the current circumstances … and this does not even consider the still unresolved question of whether the UPCA is in accordance with EU law (either with or without the participation of the UK). The position of the German government therefore makes sense to me. What does not make any sense whatsoever is why a firm of attorneys (who, after all, tend to be a rather conservative breed) would advocate for such a reckless and irresponsible course of action. One can only speculate…

Lucky Luke then said that “the purpose of this piece is not about legal coherence. Some circles have long withdrawn from sensible legal discussion, instead resorting to the desperate spreading of wishful thinking…”

Here’s the full comment:

Missing in this remarkable construct is one minor aspect: Support from German constitutional law.

According to Article 59(1) of the German Grundgesetz, the Federal President is Germany´s sole representative in matters of international law, while the initiation of negotiations on the conclusion of an international agreement and the negotiations themselves (including the definition of political objectives and the contents of the agreement) are the sole responsibility of the Federal Government. The role of the Federal Parliament is limited to the legislative proceedings on the agreement’s ratification. A simple Google search will quickly confirm this legal situation.

Hence it is difficult to see why the Federal Government as well as the Federal President would not have full and unimpeded discretion on whether and how to proceed in terms of the UPCA, subject to the overall political situation.

But, yet again, the purpose of this piece is not about legal coherence. Some circles have long withdrawn from sensible legal discussion, instead resorting to the desperate spreading of wishful thinking, often disguised as pseudo-legal theories created out of the blue. Things must indeed be looking rather grim for the UPCA.

There are some more comments in there, providing more information and not lies, unlike the Bristows “articles” that IP Kat decided to cite (Bristows also has key positions in IP Kat itself).

In another thread boosted by IP Kat some hours ago “Concerned observer” wrote about “UPC-promoters bag of tricks to somehow drum up business for the UPC (and, by happy coincidence, for the litigation firms that will be handling the UPC litigation)?”

The full pair of comments:

Small problem – the UPCA cannot be amended unless and until it comes into force. Thus, if the UK leaves the EU without an agreement before the UPCA comes into force, then the UPCA will be dead on arrival – for the reasons discussed in my comment on the previous UPC-related post.

Also, I take issue with your comment that Article 38 of the Statute is “probably not a very important core article”. The reason for this is that the preliminary reference procedure is a cornerstone of the EU legal system and so is an ESSENTIAL prerequisite for compliance with EU law. In my view, there are already strong reasons to doubt the UPC’s compliance with EU law, even with a fully functioning Article 38 of the Statute. However, rendering that Article ineffective (at least for the UK) would make non-compliance with EU law an absolute certainty.

[...]

So there is no “safety net” even under consideration in the UK. This seems to me to be yet another strike against the UPC.

Who in their right mind would risk requesting unitary effect when the UK’s participation remains highly doubtful and when there is no obvious way of recovering rights in the UK for any EPUEs that might, after grant, suddenly cease to have effect in that territory?

This would leave the UPC with only those patents that are not opted out of the system. My understanding is that this would be slim pickings indeed. Thus, even if miracles happen and the UPC struggles into life, it looks like anyone who is inclined to sign up as a UPC judge will be twiddling their thumbs for at least a few years. Or can we expect something else to be pulled out of the UPC-promoters bag of tricks to somehow drum up business for the UPC (and, by happy coincidence, for the litigation firms that will be handling the UPC litigation)?

Well, it doesn’t matter what these pre-filtered comments say, Bristows/Kluwer/IP Kat will carry on pushing pro-UPC lies. Kluwer Patent Blog totally lacks integrity and sadly IP Kat turned away from truth-seeking, instead becoming a distorter of the truth.

This kind of reckless behaviour and sheer refusal to cover EPO abuses will doom these blogs if not the whole system. They’re incapable of telling the truth. This how justice too dies.

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