Bonum Certa Men Certa

Perpetuating the Big Lie That Unitary Patent (UPC) is About to Kick Off

The EPO wrote this (below) more than two years ago

UPC



Summary: The (in)famous old lie about UPC being "just around the corner" is still being circulated, mainly if not only by patent law firms which stand to benefit from a litigation Armageddon in Europe

"TEAM BATTISTELLI" (EPO management) is expected to lie a lot. About nearly everything. The same goes for "Team UPC," basically a subset of law firms, primarily those that profit from litigation, patent trolls and so on. These people do not care about Europe; they just want to ensure that Europe keeps attracting lots of ruinous lawsuits, necessitating a lot of lawyers.



"These people do not care about Europe; they just want to ensure that Europe keeps attracting lots of ruinous lawsuits, necessitating a lot of lawyers."Lies about the Unified Patent Court (UPC) have become very routine. Left unaddressed, many people risk falling for them. Many inside Team UPC already live in an echo chamber, surrounded by mutually-reinforcing messages; they live in a bubble, to put it rather bluntly. Today we present some new examples of it (from earlier this week).

Yesterday, rather unsurprisingly, IP Kat was propping up Team UPC's Kool-Aid (probably Bristows') in order to advance the UPC's agenda. This blog should be renamed "CIPA Kat" as this is what it basically got reduced to after the founder (Jeremy) had left. This is what they wrote:

In the aftermath of the ratification of the UPCA by the UK last month, Kluwer Patent Blog has published an interview with Bruno van Pottelsberghe, Professor at the Solvay Brussels School of Economics and Management and a former chief economist of the EPO. In ‘EU should bring Unitary Patent system under its control’, Van Pottelsberghe discusses the benefits of the Unitary Patent regime to the business community, NPO concerns, German stance, and the role of EPO.


We already wrote several responses to this Kluwer Patent Blog 'article'; so did many commenters (those that managed to survive the censorship regime of Kluwer Patent Blog -- a regime which became even tougher some months ago, shortly after commenters had criticised the UPC and articles about the UPC).

"Lies about the Unified Patent Court (UPC) have become very routine."In addition to this, some Battistelli-friendly French law firm propped up the UPC in France days prior to Bristows joining in. Surely enough, Stanislas Roux-Vaillard (Hogan Lovells) has just joined in [1, 2] by stating:

Importantly, this Order does not specify which law should be applied by the French courts during the UPC transitional period; it will be for French courts to decide whether they should apply the substantive provisions of the UPC or the French law (the latter solution being the recommendation of the Preparatory Committee’s interpretative note) for issues like the Bolar exemption.


Notice the tenses; they insinuate inevitability and persist with some arrogant certainty that the UPC will actually start and the only remaining questions are some minor technicalities. That is very far from it. Robert Burrows from Bristows is meanwhile obsessing over Bulgaria as if the UPC's fate has much to do with a small economy without many EPs (32 EPs granted last year and 20 the year prior to that). Merely keeping the perception of momentum?

"Merely keeping the perception of momentum?"An article by Wolfgang Schönig and Robert Grohmann (Morrison & Foerster LLP) has just stated (in the headline even) that "Germany Is Lingering To Ratify" (as if it's just a matter of time, as per the definition of the word linger). To quote:

While some commentators struggle with how membership of the UPC is compatible with the stated BREXIT aim of "taking back control", when essentially signing up to a European patent litigation system does exactly the opposite, others emphasise that the UPC is nothing but a logical evolvement of the European Patent Convention, an international patent system that (despite its name) is not exclusive to EU Member States, and that the UPC may be open to non-EU countries, too.

[...]

It remains to be seen whether timing will prevent the UK from participating in the UPC.


It's not about timing. And the UPC is an EU thing; just check the underlying text. These people keep lying about it because law, to them at least, is just some 'pesky' thing to be worked around rather than be respected. The above sentence also puts forth the wrong question, a loaded question. This wrongly assumes or wants us to believe Unitary Patent will happen (and only the UK's participation is up in the air). It won't happen and thus the UK's participation is irrelevant a question/conundrum.

"It won't happen and thus the UK's participation is irrelevant a question/conundrum."Abigail Woodhouse, an attorney from a law firm, persists with using tenses like "will" in relation to the UPC; as though it's inevitable and likely imminent; From this long new article titled "Patents and trademarks in 2018":

Woolhouse: On World IP Day, 26 April 2018, the UK became the 16th Member State to ratify the Unified Patent Court Agreement (UPCA), which defines a new two-part patent system comprising the Unitary Patent (UP) and a new court, the Unified Patent Court (UPC). The UP will be a single patent right in up to 25 Member States of the EU and enforceable in the UPC by single judgement effective in all UPCA member states. Importantly, the UPC will also have jurisdiction over conventional European Patents. This system will endure and run alongside the UP, thus requiring proprietors to actively opt-out if they wish to avoid the UPC’s jurisdiction. It is quite possible that the UP and UPC could be in action before Brexit in March 2019. As it now stands, Germany is the only remaining mandatory party required to ratify before the new system can be brought into effect.


But no, the UK cannot participate in such a system and without the UK there's no UPC; this is in fact one of the considerations to be taken into account by the FCC in Germany. It's in the constitutional complaint.

"Notice how pretty much all of the above (pro-UPC spin) comes from the legal 'industry' as opposed to the real industry which actually makes and sells things."Do facts no longer matter? These people keep perpetuating falsehoods and myths like "IP" (above), corresponding to a propaganda term, "Intellectual Property" (not the same as actual laws, such as patent law). Stephan Kinsella wrote a great deal about this propaganda term and his latest podcast about it came out yesterday.

The matter of fact is, the UPC would serve nobody but these law firms and their largest clients, many or most of which aren't even European.

Yesterday, Philipp Cepl and Kokularajah Paheenthararajah (DLA Piper) wrote about Düsseldorf in relation to increase in liability risks. To quote some bits:

In its two recent decisions, the Düsseldorf Higher Regional Court redefined the requirements for the infringement of second-medical-use patents. Besides the cases of "purposeful preparation" of a medicament for the protected use, now, a direct infringement also "in some other way" may be considered if the medicament is objectively suitable for the patented use and the supplier takes advantage of external circumstances, which ensure that the offered medicament is used for the patented purpose. Thus, the recent case law increases liability risks for the infringement of secondmedical-use patents.

[...]

The recent case law of the Düsseldorf Higher Regional Court increases the risks of liability for the infringement of second-medical-use patents since a direct infringement now also has to be taken into account if due to external circumstances it is evident that the medicament will be used for the patented purpose.

The main field of application of this case law are cross-label-use cases as pointed out by the Düsseldorf Higher Regional Court, where only a carve-out will not be sufficient to prevent liability anymore. Besides that, also such cases may become more relevant where guidelines of medical associations or directives (e. g. of the German Joint National Committee or the Medical Chamber) may recommend certain diagnostic or therapeutic procedures, which may not be explicitly mentioned in the SmPC or package leaflet and the execution of which may realize the protected teachings of the patent. Also here it is to be expected that irrespective of the existing patent protection physicians will generally comply with such scientifically justified and practiceoriented recommendations at least insofar as they reflect medical standards.


Imagine how much worse it might (or would) get in Düsseldorf if Team UPC ever got its way and litigious firms/trolls dragged the whole of Europe into such German courts. Also yesterday (afternoon) Thorsten Bausch wrote about the Federal Court of Justice of Germany. A blog colleague wrote about the Court of Appeal of Barcelona (Spain). Both pertain to patent cases -- ones in which the only party guaranteed to win is the legal 'industry'.

Notice how pretty much all of the above (pro-UPC spin) comes from the legal 'industry' as opposed to the real industry which actually makes and sells things. That in its own right ought to serve as a reminder of who crafted the UPCA and pushes the hardest for UP/UPC.

Recent Techrights' Posts

Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
 
Lucas Kanashiro & Debian/Canonical/Ubuntu female GSoC intern relationship
Reprinted with permission from disguised.work
Pranav Jain & Debian, DebConf, unfair rent boy rumors
Reprinted with permission from disguised.work
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day