●● IRC: #techbytes @ Techrights IRC Network: Friday, August 27, 2021 ●● ● Aug 27 [00:14] *Despatche (~desp@u3xy9z2ifjzci.irc) has joined #techbytes [00:17] *blitzed (~blitzed@ar26wv7j5hvfq.irc) has joined #techbytes [00:29] *sears_hardware (~search_social@akqta89mfqm5k.irc) has joined #techbytes [00:56] *psydruid (~psydruid@jevhxkzmtrbww.irc) has left #techbytes ● Aug 27 [01:16] *rianne_ has quit (Ping timeout: 2m30s) [01:16] *liberty_box has quit (Ping timeout: 2m30s) [01:24] *DaemonFC (~DaemonFC@9p798n4ndgzc8.irc) has joined #techbytes [01:35] *liberty_box (~liberty@qhduu73fcjmdn.irc) has joined #techbytes [01:35] *rianne_ (~rianne@qhduu73fcjmdn.irc) has joined #techbytes ● Aug 27 [02:44] *psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytes ● Aug 27 [04:30] *rianne_ has quit (Ping timeout: 2m30s) [04:30] *liberty_box has quit (Ping timeout: 2m30s) [04:45] *DaemonFC has quit (Ping timeout: 2m30s) ● Aug 27 [06:15] *psydroid2 (~psydroid@cqggrmwgu7gji.irc) has joined #techbytes [06:40] *liberty_box (~liberty@qhduu73fcjmdn.irc) has joined #techbytes [06:40] *rianne_ (~rianne@qhduu73fcjmdn.irc) has joined #techbytes ● Aug 27 [08:13] *GNUmoon2 has quit (Ping timeout: 2m30s) [08:28] *Despatche has quit (Quit: Read error: Connection reset by deer) [08:54] schestowitz x https://mastodon.technology/@o0karen0o/106814084212638441 [08:54] -TechBytesBot/#techbytes-mastodon.technology | Karen Sandler: "GPL enforcement isn't usually fun and games... en" - Mastodon for Tech Folks [08:55] schestowitz https://sfconservancy.org/blog/2021/aug/24/naomi-wu-request-for-source/ [08:55] -TechBytesBot/#techbytes-sfconservancy.org | Anyone??? - Conservancy Blog - Software Freedom Conservancy [08:56] schestowitz x https://www.theverge.com/2021/8/25/22642219/microsofts-panos-panay-now-directly-advises-ceo-satya-nadella [08:56] -TechBytesBot/#techbytes-www.theverge.com | Microsofts Panos Panay now directly advises CEO Satya Nadella - The Verge [08:56] schestowitz x https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7575251/ [08:56] -TechBytesBot/#techbytes-www.ncbi.nlm.nih.gov | How organisations can ethically negotiate ransomware payments ● Aug 27 [10:59] schestowitz https://twitter.com/at2rty/status/1431191113201750020 [10:59] -TechBytesBot/#techbytes-@at2rty: @schestowitz anonymous & BIDEN same team same war morts dont 13 soldats amricains Des dizaines de morts dont 13 https://t.co/XHgt4U5mrU [10:59] -TechBytesBot/#techbytes-@at2rty: @schestowitz anonymous & BIDEN same team same war morts dont 13 soldats amricains Des dizaines de morts dont 13 https://t.co/XHgt4U5mrU [10:59] schestowitz " [10:59] schestowitz anonymous & BIDEN same team same war Face with rolling eyesmorts dont 13 soldats amricains Disappointed but relieved face [10:59] schestowitz Des dizaines de morts dont 13 soldats amricains : ce que lon sait de lattentat revendiqu par lEI Kaboul [10:59] schestowitz ' ● Aug 27 [11:09] schestowitz PASTED 20 COMMENTS in case they delete them later (as happened before): http://patentblog.kluweriplaw.com/2021/08/18/unified-patent-court-will-start-operating-within-a-year/ [11:09] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Unified Patent Court will start operating within a year - Kluwer Patent Blog [11:10] schestowitz " [11:10] schestowitz DXThomas [11:10] schestowitz AUGUST 18, 2021 AT 4:08 PM [11:10] schestowitz I do not want to repeat what I have said in a parallel thread, but it is not by dodging the problem created by the mention of London in Art 7(2) UPCA that the UPC will be working on solid legal foundations. [11:10] schestowitz The problem is serious and cannot be ignored! [11:10] schestowitz I have not yet seen a convincing and compelling argument allowing to ignore London in Art 7(2) UPCA. [11:10] schestowitz I am even surprised that lawyers can seriously envisage the provisional transfer of the duties allotted to London to Paris and/or Munich. [11:10] schestowitz The whole communique of the UPC Preparatory Committee looks more like wishful thinking than looking at the reality created by the Brexit. As long as this reality has not been duly and correctly faced and the necessary legal steps not taken, it does not appear reasonable to decide anything for the owner of a European patent than a systematic op-out. [11:10] schestowitz If the UPC goes nevertheless on the road with all this problems, I fear that other complaints will be formulated, either before the CJEU or before national constitutional courts. [11:10] schestowitz It would have been much better to ask the CJEU to give its opinion on the UPCA as it had been requested for EPLA. [11:10] schestowitz Even if the proponents of the UPCA were reluctant before Brexit, the new situation created by Brexit should have led to a request for opinion by the CJEU on the UPCA as it stands. It is difficult to understand why this has not been done. [11:10] schestowitz Trying to go through a brick wall, can hurt very badly. [11:10] schestowitz LightBlue [11:10] schestowitz AUGUST 18, 2021 AT 5:18 PM [11:10] schestowitz If the intention was not to repeat earlier comments in a parallel thread, it seems to have missed its mark. [11:10] schestowitz DXThomas [11:10] schestowitz AUGUST 18, 2021 AT 7:41 PM [11:10] schestowitz @ LightBlue [11:10] schestowitz Thanks for your comment. [11:10] schestowitz If you would have taken the bother to correctly compare the threads you would have realised that you could have kept quite. [11:10] schestowitz Concerned observer [11:10] schestowitz AUGUST 18, 2021 AT 7:03 PM [11:10] schestowitz It will only hurt if there is a sufficiently independent judiciary that is willing and able to inflict pain. [11:10] schestowitz It is perhaps possible that some national courts might object to the fact that the UPC lacks a proper legal basis for example on the grounds that, under the Vienna Convention, there is no way to interpret either the UPC Agreement or its Protocols in a manner that glosses over the fact that the UKs participation is mandatory. [11:10] schestowitz On the other hand, which national court would have jurisdiction to rule on this point, let alone have the gumption to reach the only logical conclusion? [11:10] schestowitz The main problem here is that the key pieces of legislation are international treaties. As we have seen with the EPC, no ruling of a national court will ever be viewed as providing a definitive (and hence binding) interpretation of an international treaty. Further, I have no doubt that the CJEU will dodge any difficult questions by claiming that it has no jurisdiction to rule upon the validity of the UPC Agreement. [11:10] schestowitz One might hope that the ECtHR would object to the UPC on the grounds that it lacks lawful judges (as there can be no lawful judge if the treaties underpinning the UPC lack a proper legal basis). However, when it comes to dealing with (other) international bodies, it seems that the ECtHR is always inclined to overlook even the most obvious of problems for example as illustrated by the failure of the case filed by SUEPO (subsequent to the [11:10] schestowitz appalling decision of the Dutch Supreme Court) alleging breaches of fundamental rights by EPO management. [11:10] schestowitz In essence, when it comes to international treaties, it seems to me that there is only ever as much adherence to the rule of law as the participating states can be bothered to enforce. If the UPCs supporters get their way, the judges of the UPC will be starting off from the terrible position of being forced to overlook the lack of proper legal basis for the legislation upon which the UPC is based. Given such a start, as well as other obvious ( [11:10] schestowitz governance) flaws in that legislation, it seems somewhat unlikely that the various divisions of the UPC will end up operating in a manner that companies (and the general public) in Europe find to be entirely unproblematic. [11:10] schestowitz For a sense of perspective, the governance flaws in EPC1973 and EPC2000 were much less obvious and yet we are now in a situation where there is clear evidence of problems (to say the least!) with the management of the EPO, as well as of a lack of independence of the Boards of Appeal. [11:10] schestowitz This is not to say that the situation is hopeless, it is just that knowing the correct interpretation of an international treaty is of no use when one is faced with a political will to proceed based upon an incorrect interpretation. The challenge in such a situation is to find an effective way to restore sanity. And if you find such a way, please do let me know! [11:10] schestowitz Fragender [11:10] schestowitz AUGUST 18, 2021 AT 7:15 PM [11:10] schestowitz The BVerfG in its latest decision stated, that the question of UK-participiation can not be constitutionally reviewed. Instead they said it is subject to normal interpretation of the treaty. [11:10] schestowitz To me this sounded like a pointer to the EuCJ, doesnt it? [11:10] schestowitz DXThomas [11:10] schestowitz AUGUST 18, 2021 AT 8:06 PM [11:11] schestowitz @Concerned observer [11:11] schestowitz I can only but agree with you. [11:11] schestowitz I would not be as pessimistic as you are when it comes to the CJEU. I have not yet given up every hope. [11:11] schestowitz If the notion of rightful judge should keep any meaning, the CJEU should act. [11:11] schestowitz A possible way to force a proper amendment of the UPCA would be to systematically op-out upon grant of an EP. With only a few cases to deal with, the whole UPC might then become a financial disaster. [11:11] schestowitz It is clear that at the beginning the number of opt outs will be relatively high as only some test cases will be converted in UP. It is only if the case law develops in a favourable direction, whatever one wants to understand under this topic, that the UP system will be used. [11:11] schestowitz Depending on the technical area it will in any case not be interesting to pay renewal fees for a UP. This could also become a problem for the UP/UPC. [11:11] schestowitz Should it come to a clash of case law between the case law of the BA and that of the UPC, what is foreseeable, users of the system will become much more cautious. [11:11] schestowitz Concerned observer [11:11] schestowitz AUGUST 19, 2021 AT 1:39 PM [11:11] schestowitz I am not quite sure why you would be optimistic about the CJEU. See, for example, paragraph (b) of Art. 267 TFEU, as well as the ruling in C 572/15: [11:11] schestowitz the Court has already held that adjustments set out in an annex to an Act of Accession are to be the subject of an agreement between the Member States and the applicant State and that they do not constitute an act of an institution, but are provisions of primary law which may not be suspended, amended or repealed otherwise than by means of the procedures laid down for the revision of the original Treaties (see, to that effect, judgment of 28 [11:11] schestowitz April 1988, LAISA and CPC Espaa v Council, 31/86 and 35/86, EU:C:1988:211, paragraph 12). [11:11] schestowitz I can think of many reasons why the CJEU would be inclined to use similar logic as an excuse for declining to rule upon the (in)validity of the UPC Agreement. [11:11] schestowitz Frankly, it is more than a little bizarre that the EU would agree to legislation that creates a unitary title under EU law but then entrusts the granting and enforcement of that title to institutions that are established under international law, and hence outside of the reach of all EU legal norms. To me, this suggests that there is a fundamental problem with the UP Regulation though, in relation to the complaints filed by Spain, the CJEU has [11:11] schestowitz already found a way of ducking that issue. [11:11] schestowitz Max Drei [11:11] schestowitz AUGUST 18, 2021 AT 10:49 PM [11:11] schestowitz On the issue of opting out, Im old enough to remember the genesis of the PCT and the EPO and all the talk back then about the risk of putting all your eggs in one basket. The PCT was very slow to take off. [11:11] schestowitz DXThomas envisages that only a few test cases will take the UP route. I wonder though. [11:11] schestowitz I can imagine the bulk pharma filers investing in a spread of cases, distributed between opt-outs and UP route patents, aiming for a sweet spot in the distribution which combines reduced annuity fee budgets with full power of enforcement through infringement litigation. [11:11] schestowitz What do others think? [11:11] schestowitz DXThomas [11:11] schestowitz AUGUST 19, 2021 AT 9:57 AM [11:11] schestowitz Dear Max Drei, [11:11] schestowitz You are right when you remind us of the reservations expressed by potential applicants towards the PCT and the EPO in the seventies. The fear of putting all the eggs in the same basket was real. [11:11] schestowitz It however turned out that those treaties had a strong legal basis and the way the PCT and the EPC were handled by the responsible authorities showed that the fears were unjustified and the two systems proved to be a success story. [11:11] schestowitz I see this quite differently as far as the UPC is concerned. For a start, by dodging the problem of Art 7(2) UPCA it will start on a wrong legal footing. The first party loosing before the UPC will make everything possible to fight this decision, and the question of the actual conformity with Union law will be at the centre of the discussions. Why on Earth the UPCA has never been submitted to the CJEU for opinion as it was the case for EPLA. [11:11] schestowitz There also many other problems which I have mentioned and I will not dwell on them. [11:11] schestowitz That there will be a mix of UP and a mix of opt-outs, it might take quite a while for cases coming before the UPC. In general it is cheaper to come to an extra judicial settlement rather than to fight before court. The IP budgets are not extensible at will or for the benefits of litigating lawyers. It is only if it will be clear that the UPC comes up with reasonable decisions that we will see if the whole UP/UPC system is worth it. [11:11] schestowitz Max Drei [11:11] schestowitz AUGUST 19, 2021 AT 12:49 PM [11:11] schestowitz Just a small caveat, on budgets. The way I understand it, the corporation has one for drafting, filing, prosecution and maintenance of its patent portfolio, and quite another one, entirely separate, for fighting patent disputes. The former is tightly constrained and expected not to change much, year by year. Those setting it for an employer that is a global pharma corp, and those implementing it, will find the cost saving offered by the UP to be [11:11] schestowitz seductive. [11:11] schestowitz As to the latter, what budget to allocate to winning a patent dispute is subject to different pressures and constraints. When giant egos are involved, there is always the possibility of an unconstrained budget for doing whatever it takes to see off the competitor. [11:11] schestowitz So, I suspect the UP will be relied upon heavily, despite the legal uncertainties. I also suspect that in the very first UP dispute, the loser will not back down until after the case has been taken all the way to the CJEU. Great news for the leading patent litigation firms, eh? [11:11] schestowitz LightBlue [11:11] schestowitz AUGUST 19, 2021 AT 1:40 PM [11:11] schestowitz The use of the PCT and or the EPO route for patentees has never been driven by considerations of a strong legal basis. What matters to the patentee is the resulting product, a granted patent. If the systems are user friendly and do not catch applicants out unawares, they will use the system, particularly if it has cost/cash flow benefits. [11:11] schestowitz Once a system starts to show potentially dangerous failings, the applicant will consider alternatives. With the EPO, the developing A123(2) situation, with the so-called gold standard effectively requiring literal disclosure, is one such failing. [11:12] schestowitz DXThomas [11:12] schestowitz AUGUST 19, 2021 AT 3:41 PM [11:12] schestowitz @ LightBlue, [11:12] schestowitz If I follow your logic, then due to the developing A123(2) situation, which you consider a failure, your advice is thus to drop the route via the EPO, then the UP/UPCA will never exist for lack of patents granted by the EPO. [11:12] schestowitz It remains that in spite of some problems, the PCT and the EPC have never started with a problematic legal situation. And this is a great difference with the UPCA. [11:12] schestowitz Andr Frans [11:12] schestowitz AUGUST 18, 2021 AT 10:56 PM [11:12] schestowitz What is the agenda to remove the UK from the PPA? Get 2 more countries to sign it, even though the UK is still mentioned in there? [11:12] schestowitz DXThomas [11:12] schestowitz AUGUST 19, 2021 AT 9:21 AM [11:12] schestowitz It would be a very pragmatic solution to ignore UK in the the PPA or London in Art 7(2) UPCA. [11:12] schestowitz But then we end up in a legal jungle as treaties and agreements would not be worth the paper they are written on. [11:12] schestowitz I might be called naive or optimistic, but then we would end up in a society in which the right of the strongest prevails. This is not what I want for my children or grandchildren. [11:12] schestowitz five cents [11:12] schestowitz AUGUST 19, 2021 AT 10:02 AM [11:12] schestowitz Ill continue the discussion about Art.87(2) here, before the comments in the other thread close. [11:12] schestowitz Brexit is not a patent treaty or Union law. Brexit is an event. It changed the players, not the rules. Were still members to the same patent treaties and EU member states still have to comply with the same Union law. The same people who earlier argued that post-Brexit UK could remain a party to the UPCA now seem to argue that the UPCA is somehow incompatible with Union law and should therefore be amended. But if the UPCA is not compatible with [11:12] schestowitz Union law, someone should be able to point to some EU law and article that makes it incompatible. [11:12] schestowitz Arguably, its not Brexit but the UKs withdrawal from the UPCA that causes the current problems with Art 7(2) and the PPA. [11:12] schestowitz For Art 7(2): The London seat of the Central Division is not linked to the participation of the UK in the EU or the UPCA. Is there actually a legal problem here? Or is it just a matter of political and practical undesirability to have a UPC court in London. Art 87(2) is clearly not intended to change the UPCA when one or more member states are not happy with the content anymore. [11:12] schestowitz For the PPA: Countries decided that they wanted a new patent system, but only wanted it to start if DE, FR and UK were to take part. The UK later decided to withdraw. The only logical conclusion then is that you cant start the system without ratifying an amended version of the system. [11:12] schestowitz DXThomas [11:12] schestowitz AUGUST 19, 2021 AT 10:18 PM [11:12] schestowitz @ five cents, [11:12] schestowitz Your comment is interesting and at the same time puzzling. [11:12] schestowitz Do you mean that the London section could be left in London and just be staffed with citizens of UPCA member states? [11:12] schestowitz I do follow you when you consider that the system cannot be started without ratifying an amended version of it. [11:12] schestowitz In the parallel thread I have explained why the UP/UPC system is not the system with which the European harmonisation is the best! [11:12] schestowitz The Convention Watchdog [11:12] schestowitz AUGUST 20, 2021 AT 9:39 AM [11:12] schestowitz The UK does no longer wish to have the London Section and to continue the preparations for starting its operation. This ie evident from the fact that the UK has withdrawn on July 20, 2020 its ratification of the Protocol on Privileges and Immunities of the UPC. Without such a Protocol an international authority has no legal basis for acting on the territiry of a State. [11:12] schestowitz Russell Barton [11:12] schestowitz AUGUST 20, 2021 AT 11:24 AM [11:12] schestowitz The Gordon & Pascoe opinion in item 89 considered that the a court in London could not make preliminary references to the CJEU without further measures in place and in addition (not considered by Gordon & Pascoe) the UK territory is now not subject to Art 21 of the UPCA. [11:12] schestowitz https://www.bristowsupc.com/assets/files/counsel_s%20opinion%20on%20effect%20of%20brexit%20on%20upc,%2012%20sept%202016.pdf [11:12] schestowitz If thats correct then in accordance with 1/09 presumably Art 87(2) does kick in and problem can be quickly solved (provided member states agree on the solution). [11:12] schestowitz If its not correct and i/ being a court common to EU member states is sufficient and ii/ somehow a court can legally exist in the UK as a national court common to the EU members without any legal agreement with the UK, then as you suggest a diplomatic/financial settlement with the UK might work to hire space in London. [11:12] schestowitz DXThomas [11:12] schestowitz AUGUST 23, 2021 AT 7:56 AM [11:12] schestowitz If I understand well your argumentation, you consider that Art 87(2) UPCA could be used to transfer the duties allotted to London to another location, and hence the problem of Art 7(2) UPCA be resolved. [11:13] schestowitz A contrario would it mean that a provisional transfer to Munich and/or Paris and a final transfer later to another location is not supported by Art 87(2)? [11:13] schestowitz Camparinos [11:13] schestowitz AUGUST 19, 2021 AT 2:07 PM [11:13] schestowitz Technically, there is still till the end of the year to file further constitutional complaints in Germany. [11:13] schestowitz Stjerna unveiled further problems in the 2012 emails written by the Ministry of Interior, where they mention that the Statutes of the Court can be adopted at a 3/4 majority, while for example, the Statutes of the CJEU are adopted at unanimity. National parliaments can be sidelined if they dont agree with the way the Court is designed. [11:13] schestowitz " [11:14] *psydroid_ (~psydroid@cqggrmwgu7gji.irc) has joined #techbytes ● Aug 27 [13:29] *GNUmoon2 (~GNUmoon@5ek4rkvgqqvr4.irc) has joined #techbytes ● Aug 27 [15:52] *blitzed has quit (Quit: +++ATH0&D2 NO CARRIER NO CAREER) [15:52] *blitzed (~blitzed@ar26wv7j5hvfq.irc) has joined #techbytes ● Aug 27 [16:01] *psydroid2 has quit (connection closed) [16:19] *psydroid2 (~psydroid@cqggrmwgu7gji.irc) has joined #techbytes [16:35] *psydroid2 has quit (Ping timeout: 2m30s) [16:48] *psydroid2 (~psydroid@cqggrmwgu7gji.irc) has joined #techbytes ● Aug 27 [18:19] schestowitz