12.07.19

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Unitary Patent (UPC) Died Along With the Credibility of Managing IP and the Rest of the UPC Lobby

Posted in Deception, Europe, Patents at 5:55 am by Dr. Roy Schestowitz

August 2019: Managing IP as Team UPC’s Megaphone and Lobbying Front

Managing IP lying

Summary: It is pretty astounding that Team UPC (collective term for people who crafted and lobby for this illegal construct) is still telling us lies, even in the absence of underlying supportive facts, and pressure groups disguised as “news sites” latch onto anything to perpetuate an illusion of progress (even in the face of a growing number of major barriers)

THE European Patent Office (EPO) may seem quiet judging by lack of media coverage (nobody covered the outcome of the strike ballot; the fact is, five out of six voted for a strike). We’re supposed to think that António Campinos magically put an end to the Battistelli era just by virtue of coming to Munich.

EPO examiners are too smart to believe anything substantial changed (and/or for the better). The new guidelines, in effect since last month, compel examiners to grant more illegal software patents while their reward for this ‘production’ is actual reduction in renumeration. Where is the EPO going? “Collaborative Quality Improvements” (CQI), formerly known as “Team Collaboration Project,” shows that the Office isn’t really interested in examiners [1, 2]. They become more like official clerks than scientists. Their pay, their working conditions and employment benefits are accordingly gnawed away. They’re devalued as individuals and as professionals. Ask them. They’ll tell…

“EPO examiners are too smart to believe anything substantial changed (and/or for the better).”The litigation ‘industry’, on the other hand, is rather satisfied. Seeing the ‘growth’ in patents (a meaningless measure in its own right) they foresee lots of lawsuits, even frivolous ones. Seeing that ‘pesky’ courts get in their way, however (dismantling the European Patents), they still hope to remove that ‘annoying’ obstacle. They want a court that they better control with rules that they themselves drafted. That’s the UPC and the UPCA seems like a zombie document. It’s an ‘agreement’ that many people and even nations disagree on/with. Misled and bribed politicians, along with frightened and bribed press, helped Team UPC.

The litigation ‘industry’ and its lobbyists have not given up. They want us to think that UPCA being torpedoes is actually ‘great’! They say it works in their favour or to their benefit — something along the lines of celebrating the flu as a blessing in disguise, “making one stronger.”

AWA’s Niklas Mattsson and Louise Jonshammar (UPC hopefuls, based on the firm’s track record) have just published this piece (“German decision on UPC expected in early 2020″), echoing articles that said something similar about 2018, 2019 and so on. This headline is based solely on an improper telephone ‘interview’ — in a foreign language — with a judge that even the court sought to distance itself from [1, 2, 3]. We’ll come back to this in a moment. One must pay attention to the way Team UPC front group Managing IP squeezes this one ‘interview’ for weeks. They still talk about is every day. Managing IP has just spoken about “[a]n exclusive interview with Justice Huber of the German Federal Constitutional Court and the results of our survey on mental health and wellbeing were among the most read…”

“They lionise Justice Huber and shower him with praises, even fake badges and nonsense like “IP STARS”.”Managing IP is a patent zealots’ front group disguised as a “news” site. Its history when it comes to the UPC is very well documented here. They actively played a role and meddled in various ways. They met and spoke to Battistelli several times over the years. They set up pro-UPC lobbying events for the EPO. They published classic ‘fake news’ about the UPC (false predictions with no underlying source or evidence). We’ve also just noticed that over in Twitter they’re trying to ‘reward’ the judge with ‘honours’, e.g. here (there’s more). They lionise Justice Huber and shower him with praises, even fake badges and nonsense like “IP STARS”. Watch who they give these “crowns” to; it’s rather revealing. Watchtroll has just published “Gene Quinn Named One of the 50 Most Influential People in IP by Managing IP” and their list features Justice Huber (whom they elevate in Twitter). They’re also glorifying Microsoft’s Erich Andersen, who ‘reciprocates’ with a link in Twitter. Patent extortion against GNU/Linux ? Yes, reward! Chris Coons pushing for software patents and against patent justice (and courts)? Quick! Reward and special mention also!

“The people who nowadays publish their ‘reports’ could just go back to ‘uni’ and study how the patent systems actually work instead of just printing whatever law firms (which pay Managing IP) tell them to write.”Managing IP is basically a prank ‘news’ site, composed by people with no qualifications in the said area. As more writers leave (high turnover there) they hired increasingly less experienced people. We don’t want to name names here, but one can check and verify this for oneself. The people who nowadays publish their ‘reports’ could just go back to ‘uni’ and study how the patent systems actually work instead of just printing whatever law firms (which pay Managing IP) tell them to write.

So anyway, going back to AWA’s Niklas Mattsson and Louise Jonshammar, here’s what they say: (the firm apparently promoted this for a fee)

In an interview with IP industry publication Managing IP, Justice Huber of the German Federal Constitutional Court stated that the UK’s decision to leave the EU was of no concern to him and that, depending on the time it takes him and the other judges to deliberate, it is his intention for the Court to issue a decision on the complaint against German ratification of the Unified Patent Court Agreement (UPCA) in early 2020.

However, any decision from the German Federal Constitutional Court may still be delayed as the Justice Ministry previously expressed in a letter that the government will not ratify the UPCA until the implications of Brexit are clear.

Moreover, the court itself distanced itself from this inadequate ‘interview’, made memorable by use of words like “bullshit”. Why did a judge speak to a pressure group? Because he was pressured?

“Germany needs patent reform badly. The German patent litigation system is not just broken: it was ill-conceived and it’s been prone to abuse all along,” argues Florian Müller this month (days ago), stressing in his headline that “it would be unconstitutional in other countries” [1].

“This thing was ‘constructed’ (in a conspiratorial fashion) by law firms from France, Germany, and the UK (some of them have branches in several if not all of these countries).”“UPC will heavily influenced by Germans and their broken patent system, which favour patent trolls and is out of reach for SMEs,” Benjamin Henrion said about this article yesterday, followed by the hashtags #upc #germany and #trolls (seems apt). He has meanwhile also noted: “Unitary Software Patents ratification coming to Brussels Parliament, when do we get an opinion from the Belgian Constitutional Court about making adhoc rules of procedure for a court, which is against ECHR art6, justice made by LAW…”

He mentioned this to me yesterday and I told him that Brussels doesn’t matter to it; nobody expected Brussels (EU) to be the source of resistance, unlike the Spaniards, Czechs, Hungarians, Poles and so on. This thing was ‘constructed’ (in a conspiratorial fashion) by law firms from France, Germany, and the UK (some of them have branches in several if not all of these countries). Brussels is being an extension of EU authorities here, i.e. German/French Eurocrats.

“The EPO is not at all for SMEs!!! Leaks prove otherwise, as do basic sanity checks and scholarly work.”Suffice to say, those law firms don’t know or care about SMEs. They just don’t. They constantly lie about SMEs, as does the EPO. The EPO released several more tweets about “SMEs” this past week, a little #IPforSMEs fluff and then some more about #IPforSMEs (we’ll spare readers the shallow and repetitive content of these “tweets”). We’ve seen this more than once a day an average (used to be once in a couple of days or thereabouts, so it is increasing in frequency). Here’s some more tweeting about “SMEs”: “Up to two-thirds of inventions developed by SMEs & protected by European #patents are commercially exploited – around half exclusively by the SME itself & half with a partner, usually from another European country.”

That’s a rather meaningless and intentionally misleading bit of statistics. One might wrongly interpret that as two-thirds of SMEs being in favour of the status quo. The EPO together with the EUIPO recently released equally ridiculous claims. Causations and correlations get played like fire.

The EPO is not at all for SMEs!!! Leaks prove otherwise, as do basic sanity checks and scholarly work.

Yesterday the EPO tweeted: “Regular searches in #patent databases allow companies to monitor competitors and reveal opportunities for future innovations.”

“These are universal realities when it comes to the patent systems and that’s not unique to Europe.”“That also makes them liable with treble damages (willful infringement),” I responded, “but you leave that inconvenient fact out, don’t you? #IPforSMEs hashtag a total misfit here.”

“Even if you are not obliged to appoint a professional representative when applying for a #patent,” the EPO also tweeted yesterday, “it may still be helpful to consult one.”

“Very expensive and small businesses haven’t in-house ones,” I responded, “so they wind up wasting a fortune on advice from disloyal (external) people…”

These are universal realities when it comes to the patent systems and that’s not unique to Europe. Also check (based on publicly available data) what proportion of patents goes to SMEs.

“Also check (based on publicly available data) what proportion of patents goes to SMEs.”UPC would further damage SMEs, which barely if at all operate outside their home country and thus have a lot more to lose than to gain from multinational litigation.

Over at Kluwer Patent Blog (comments) Richard Gillespie wrote: “I find it surprising that the UPC has attracted so much more attention than the four EPO-related cases before the BVerfG – the result of these cases could have a far greater impact on out profession than the UPC-related case.”

And “Concerned observer” responded:

In my view, the answer to your question is that, in a large part, this is due to complacency that is based upon the assumption that the BVerfG will hesitate to reach a conclusion that could force Germany to exit such a long-established (and deeply embedded) international treaty as the EPC.

There may well be an element of truth in that assumption. However, whilst I do not claim any familiarity with constitutional law in Germany, it appears to me that another possible outcome is that the BVerfG’s ruling requires the German government to negotiate amendments to the EPC … which amendments could have significant effects. For this reason alone, I believe that it would be unwise to assume that none of the complaints in the EPO-related cases will be upheld.

Moreover, we already have examples of the independence of the EPO’s “judiciary” being compromised (in the Corcoran case, twice). Also, the Enlarged Board of Appeal is currently pondering a case (G 3/19) where the eventual ruling will provide direct evidence on the question of whether the EBA remains truly independent of the EPO’s President and Administrative Council. Given the (potential) breaches of the rule of law at the EPO in these cases, it seems to me that the BVerfG could well be justified in upholding at least some of the constitutional complaints relating to the EPO. Whether they will go as far as finding the current structure of the EPO unconstitutional remains to be seen … but it appears that there is no room for complacency on this point.

“Thanks for the reply,” Richard Gillespie later responded, “I think your [sic] right on this.”

“Concerned observer” later added:

I have been waiting years now for a plausible answer to the even more fundamental question of how the UPC can simultaneously meet the requirements of Article 267 TFEU (where preliminary references are only admissible if they are made by a “court or tribunal OF a Member State”) whilst being based upon an Agreement that allegedly establishes an INTERNATIONAL court (which permits the participation of a non-Member State).

Given the speed with which arguments have been generated by the UPC’s proponents on other points of law that threaten the viability of the UPC project, I believe that the long period over which not even a remotely plausible answer to this question has been provided can now be taken as strong evidence of the non-existence of any such answer. However it is evident that even non-compliance with EU law (ie the creation of a court that would destroy the integrity of the EU’s legal order) is no deterrent to those seeking to make the UPC a fait accompli.

My guess is that the proponents of the UPC are envisaging a situation in which the CJEU will keep the show on the road by delivering a judgement that, no matter how unconvincingly, glosses over the fundamental incompatibilities between the Agreement and EU law. Sadly, such a travesty is not as implausible as it ought to be. This is because there is evidence that, where there is enough political will, even immovable legal obstacles can be overcome (think, for example, of the decision of the Supreme Court of the Netherlands which ruled that recourse to ILO AT – which only accepts after the fact complaints from individuals – is an adequate recourse for those seeking to exercise their right to COLLECTIVE bargaining).

With this in mind, perhaps the most important question to answer here is why are the proponents of the UPC so seemingly confident that the political will is there to push their pet project over what should (for the sake of maintaining the integrity of the EU’s legal order) be an insurmountable obstacle? In other words, how can they be so confident that the politicians will support their project no matter what untold damage it might cause?

This is one of those cases where both the articles and all the comments are reasonable. Team UPC is more or less ‘shut out’ of this discussion, so there’s clarity, honesty, and common sense, not blind jingoism and lies (like whatever we see from AWA and Managing IP).

The above was only mentioned and quoted selectively by Team UPC. We supposed they don’t really want people to see it.

“Team UPC is more or less ‘shut out’ of this discussion, so there’s clarity, honesty, and common sense, not blind jingoism and lies (like whatever we see from AWA and Managing IP).”As a side (but nonetheless important) note, Henrion has taken some time off work to fight the UPC or will do so very soon.

They might rename (again) the UPC and retry for the next 10 years. We need to keep watching. “We need to go on campaign mode against to defeat the Unitary Patent monster,” Henrion explained. “Will take some days off to make an urgent plan of attack #swpat #upc #smes”

“Imagine the public reaction if Anthony Joshua claimed that his loss to Andy Ruiz II earlier this year was actually a “good” thing because of the ‘rematch’.”We don’t quite share his alarmist tone. We think that UPC died more than 2 years ago and those who still entertain it are “playing with the corpse” (as the saying goes). Henrion points to this page of feedback on EU policy that reveals patent trolls and their front groups (and law firms, e.g. Team UPC lobbyists). “Full of patent trolls here,” Henrion said, but yes, it’s hardly surprising. This is what we’ve been seeing for years and this is why UPC managed to get as far as it had (until its death). We’re not particularly concerned about the UPC anymore, seeing that its loudest proponents take very early retirement, IAM quit talking about it (almost), and the ringleader Ramsey has the audacity to say that all these setbacks are actually “good” (as if a loss is actually a win). “Failure is success if we learn from it,” Malcolm Forbes said. But what was learned by Team UPC? Nothing. Imagine the public reaction if Anthony Joshua claimed that his loss to Andy Ruiz II earlier this year was actually a “good” thing because of the ‘rematch’.

Related/contextual items from the news:

  1. Injustice is a built-in feature of Germany’s bifurcated patent litigation system — it would be unconstitutional in other countries

    I am presently researching the most appalling miscarriage of justice that ever occurred in a German patent case: dozens of people lost their jobs over a patent–held by a publicly-traded U.S. corporation–that later got invalidated by the Federal Patent Court of Germany (a problem commonly referred to as the “injunction gap”). That patent-in-suit is either (if construed broadly) clearly invalid or (if construed narrowly) not infringed by the accused product, but could not reasonably be held valid and infringed at the same time. The case raises questions not only about the outcome but also about the reasoning and the circumstances that led to it. There’s even a secondary question that reminds me of why Federal Circuit Chief Judge Rader resigned. But as the issues are so very serious, and the fallout from the facts being published might be massive and lasting, I’m making every humanly possible effort to analyze the matter with utmost diligence. That’s why it’s too early to provide names, but when the time is right, I will. The case number contains “39.” Interestingly, the presiding judge of the appellate panel that made the related decision mentioned it in passing last month, in a conspicuously defensive way, and the audience had no idea why he made a reference to a case they hadn’t ever heard of…

    Germany needs patent reform badly. The German patent litigation system is not just broken: it was ill-conceived and it’s been prone to abuse all along, but abuse has become so rampant that the time is ripe for change. The situation is unsustainable, and the system doesn’t really deliver justice.

    Right now there’s only one leading German patent infringement court of first instance that I believe does a stellar job under the circumstances, and that’s the Landgericht Mannheim (Mannheim Regional Court). Many years ago I thought the court was too plaintiff-friendly, but by now it’s my favorite one. To a far greater extent than their counterparts in other German venues, the Mannheim judges–whose understanding of technical issue is unsurpassed–have realized just how irresponsible it is to let patent holders enforce invalid patents all the time. In Mannheim, there are judges who deserve an honorary doctorate in (at least) radio frequency electronics and have the expertise to figure out when a patent is likely invalid as granted, coupled with the backbone to stay such cases (while we’re on this subject, I found out they recently also stayed one Broadcom lawsuit against BMW and one against Daimler, both over non-standard-essential patents). It will be interesting to see how they address the issue of component-level licensing in Nokia’s automotive SEP cases.

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