Bonum Certa Men Certa

Team UPC Has Run Out of Arguments, So Now It's Just Writing Anti-Brexit Rants With Testicles in the Headlines



The three Frenchmen



Summary: Nothing has worked for firms that crafted and lobbied hard for the Unified Patent Court (UPC); after necrophilia a new low is being reached

I MYSELF am not pro-Brexit, but this isn't the point. Many people who oppose the UPC and oppose corruption at the European Patent Office (EPO) are pro-EU and against Brexit. It's actually very likely that the majority of such people, typically better educated folks, won't conflate the two matters. Last year Bristows tried to associate opposition to the UPC with the far right. It's an old trick that won't fool anyone.



"So they're international litigation people -- just what the UPC caters for."In a recent article (dated 29.04.19) about Brexit a law firm speaks about the UPC very succinctly. Who wrote it? "Beverley Potts is a senior professional support lawyer and David Stone is a partner in the London office of Allen & Overy; Joachim Feldges is a partner in the Munich office; Keren Livneh is a senior associate in the New York office; and David Shen is a partner in the Shanghai office."

So they're international litigation people -- just what the UPC caters for. Here is what they wrote: "There is continuing uncertainty about when and if the Unified Patent Court (UPC) will come into effect. Some of that uncertainty stems from Brexit but there is also a pending challenge to the legality of the system in Germany. If and when the unitary patent and the UPC come into force, there is debate about whether the UK may still qualify as a member state under the Agreement on a Unified Court. For the time being, patent owners are waiting for the further development of the UPC and, in particular, for the decision on the German constitutional complaint (judgment still pending)."

"Last year it tried fake news and fabricated/false rumours. It told politicians that the UPC would start very soon and the complaint be dismissed; their liars cited no reliable source, they just made the whole thing up."Notice that familiar pattern with the two famous lies. Britain cannot participate in a system (that does not exist anyway) regardless of its status and the court observes a variety of factors (about 4 of them). So UPC is basically a non-starter.

We've meanwhile noticed a shift in the strategy of Team UPC. Last year it tried fake news and fabricated/false rumours. It told politicians that the UPC would start very soon and the complaint be dismissed; their liars cited no reliable source, they just made the whole thing up. They're liars, not lawyers.

Failing that, half a year down the line, they've turned to discussions of Brexit itself. We're supposed to think that this whole thing, which obstructs the UPC, boils down to nothing but Nigel Farage and his laughable (a domestic joke) Brexit Party.

"We're supposed to think that this whole thing, which obstructs the UPC, boils down to nothing but Nigel Farage and his laughable (a domestic joke) Brexit Party."IP Kat's Team UPC (Annsley Merelle Ward, Bristows) amplifies Team UPC (AIPPI) and the colleague Alan Johnson has nothing left to say about the dead UPC, so now he's just ranting about Brexit in a patent blog (which oughtn't be about Brexit Party/Nigel Farage but about patents). Even the headline is immature: "Brexit Party or “Bollocks to Brexit” – will the EU Parliamentary elections make any difference?"

Watch what Kluwer Patent Blog has been reduced to by Bristows. Words like "Bollocks" in titles. Colloquially, in plural form (as above) it means testicles.

A non-Bristows author at Kluwer Patent Blog (and not Team UPC either) pointed out as recently as 4 days ago that "[a]ccording to the EPO’s Annual Report 2018, 66712 patents were granted in 2013. In 2018, the number of patent was 127625! Conversely, the number of examiners has almost exactly stayed the same (4221 in 2013, 4276 in 2018)." The context of this post is slowness of German courts, especially in nullity (of patents) procedures that are often settled outside courts and thus mask the really appalling rates of patent validity. To quote the relevant portions:

Will your response be: “Well, well, well, but is this such a big problem? Each patent has at least been thoroughly examined by either the German or the European Patent Office. So don’t these well-examined rights deserve being respected?” – Hmmm. The validity of this argument obviously depends on the quality of the patents granted by the respective offices. And here lies another serious problem. The EPO, for example, has almost doubled the number of granted patents over the past 5 years. According to the EPO’s Annual Report 2018, 66712 patents were granted in 2013. In 2018, the number of patent was 127625! Conversely, the number of examiners has almost exactly stayed the same (4221 in 2013, 4276 in 2018). This means that compared to 2013, each examiner now has half the amount of time available to examine and judge each application. And given that it is easier to comply with applicant’s wishes than to write a decision of refusal, you can guess what this trend means for the average quality of the search and examination process.

But even if the quality of the granted patents had miraculously stayed the same for the last 5 years, this does not mean that examination by the EPO or GPTO makes a patent fire-proof. On the contrary, the percentage of total or partial invalidations by the Federal Patent Court is significant.

[...]

The impression you might get from these statistics is that only a relatively small (in 2018, 24% + 16%) proportion of patents is wholly or partially revoked, whereas the rest is maintained. But this is not so. In fact, the BMJV’s statistic is – apologies for being so outspoken – quite misleading. This is because most cases before the Federal Patent Court are not “disposed” by a contentious judgment, but by withdrawal or some other sort of settlement. In particular, patentees may wish to settle a nullity action – e.g. by granting a free license – when they know their patent is of doubtful validity. Thus, while the number of “disposed cases” is somewhere from 200-250, the number of actual decisions per year is only in the order of 100. For example, in 2015 there were 93 judgments, of which 47 (50%) ended with total revocation, and 32 (34%) with partial revocation. The patent was maintained as granted only in 17 (18%) of all cases!

This trend has not significantly changed over the last 5 years. One simply cannot assert that even the simple majority of patents that are seriously attacked before the FPC will withstand nullity plaintiff’s challenges


Imagine something like the UPC, connected to the EPO, being put in charge of assessment of European Patents. Will judges lose their jobs (contract not renewed) for throwing out "too many" European Patents? Therein lies some of the very substance of the UPC complaint in Germany's FCC. Let's hope the decision takes another couple of years to arrive (there haven't even been oral arguments yet) because the UPC was a terrible idea all along and it's unconstitutional in many member states for reasons such as languages among others. Brexit delays also further contribute to the demise of the UPC, as we explained several times before. Bristows' UPC blog is more or less dead, so now they ruin others' blogs.

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