The blog of Jeremy Phillips seems to have become more like a think tank after his retirement

Summary: On matters of patents, IP Kat continues moving to the right (patent maximalism, acceptance of Battistelli's regime, UPC bubble and so on) and commentary to the contrary is not being accepted

THE previous post spoke of the latest censorship by the 'Kats', who rarely if ever write something truthful or objective about the UPC. It often seems like the blog became an EPO megaphone after the EPO had threatened/sanctioned it. It's very important that people out there can discern/recognise UPC boosters (sometimes paid for it) as they tend to dominate the discussion. They use their money or their 'weight' to set up bogus forums (at times funded by EPO money) and infiltrate the media. James Nurton from Managing IP, for example, having spoken to Battistelli several times and also helped organise pro-UPC events, continues to prop up the illusion/delusion of UPC inevitability. "Patent practitioners will soon be using the UPC case management system," he wrote.

Bull****.

"Judging by the comments, Jeremy Phillips is aware of this and appears to have no problem with this."We are sad to see that statements such as these -- the wishful thinking of Team UPC -- continue to percolate onto sites which proclaim to be "news" sites. Even so-called 'blogs' have turned into little beyond marketing. Kluwer Patent Blog has begun publishing some criticisms of the EPO (usually from Thorsten Bausch, who is a brave man), whereas IP Kat gets more extreme over time. Adding to the toxicity from Bristow, IP Kat now takes even people from CIPA (another massive booster of the UPC). It won't end well. Stephen Jones has just been introduced as "current VP of the Chartered Institute of Patent Attorneys (CIPA)." These are the people who lobby our politicians hardest for the UPC, often misleading them, pressuring them, and lying to journalists. We could think of expletives to add to this paragraph, but to keep it polite, CIPA is perhaps the worst messenger on this topic -- even worse than Bristows!

So we know what to expect. Judging by the comments, Jeremy Phillips is aware of this and appears to have no problem with this. It's worth noting that Darren Smyth is leaving the blog after exploiting that blog for his own UPC agenda (marketing).

Thankfully, people in the comments are not exactly tolerating the bias. The other day someone wrote that it's "amazing to see how wishful thinking is acting" in UPC propaganda (this thread was covered here before). Here is the comment in full:

It is amazing to see how wishful thinking is acting. I fully agree with proof of the pudding.

You may read Opinion 1/09 anyway you like, but it does not say that non-EU members can be part of the UPCA. The possibility to refer questions to the CJEU is and stays reserved to member states of the EU. Do you think the CJEU will simply accept referrals to it by any court in a non-member state of the EU?

If this would be possible, we would have heard about it, and EPLA would have been adapted to provide for this possibility.

What other safeguards would be needed, beside at least the ability to refer questions to the CJEU? What about enforcement? Lugano yes, but.

Looking at another thread (in the second part), the UPC 'panel' that got stacked by EPO and Bristows et al is recognised for what it really is. It's not a debate but just lobbying. The coverage from IP Kat refrains from saying it, but the comments basically state the obvious about "Bristows law firm [which is] the sometimes almost radical pro-UPC [with] activities of which are meanwhile notorious..."

Here is the full comment:

How convenient to hold such discussions exclusively amongst pro-UPC people the results of which can afterwards be sold to the general public as constituting some kind of 'general bottom line understanding'.

It is worth noting the following with regard to both parts of this article:

Tim Frain is sitting on the UPC Expert Panel (www.unified-patent-court.org/news/chairman-invites-new-expert-panel-advise-preparatory-committee) - what do you expect to hear from him?

Michael Froehlich is an EPO employee - again: what do you expect to hear from him?

Alan Johnson is a partner at the Bristows law firm the sometimes almost radical pro-UPC activities of which are meanwhile notorious - so: as before.

Against this background, it does not come as a surprise that this post is conveniently presenting a number of very controversial questions in a manner as if reliable answers to them not only existed, but were even being supported by a majority and, of course, always in the sense of the UPC proponents! Maybe people without expertise in this field will fall victim to such obvious manipulation. All those with a deeper understanding of the situation and of the highly complex legal and political situation can only shake their heads about such clumsy and a little naive attempts of pro-UPC marketing.

Someone then points out: "Perhaps those with opposing views will come out under their cloak of anonymity and set out their opposition to these points with references to the UPCA articles, Opinion 1/09 and constitutional European law for all to discuss and debate. Seems a quick solution to some of the complaints - legitimate and otherwise - raised about the UPC debate."

The above panel attempted to convince people that the UPC was just about to happen, but as the following comment clarified, the UPC Agreement remains incompatible with Article 50 being invoked and the UK leaving the EU:

Tim - many thanks for your comments. With respect, however, I think that you are missing the main point here.

Perhaps I can best illustrate that point by posing the following question: what is the legal basis for the ability of the UPC to refer questions to the CJEU?

The answer, of course, is that the UPC is a court that forms part of the national legal order of the EU Member States. Being such a (national) court would allow the UPC to make references under the provisions of Article 267 TFEU.

This explains why Article 21 of the UPC Agreement reads as follows: "As a court common to the Contracting Member States and as part of their judicial system, the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be binding on the Court".

Now, I do not think that it is impossible that there might be other ways in which the UPC could be granted authority to refer questions to the CJEU - perhaps even if the Member States of the UPC Agreement include non-EU countries. However, as things currently stand, Article 267 TFEU is the sole basis on which the UPC could refer such questions. Thus, if the UPC is not actually "part of the national legal order" of EU Member States, then that removes the sole basis upon which it can make a reference.

And the next comment said:

When one sees the difficulties in dealing with trademarks, what could it be if UK would quickly ratify the UPC to exit the agreement at the end of Brexit.

All those who claim that UK could stay in the UPC, seem to take they wish for reality.

In summary, nowadays the 'Kats' are basically people with vested interests in the UPC, citing or promoting views of other people with vested interests in the UPC while selectively deleting comments they don't want anyone to see. What does that make IP Kat? ⬆