Summary: Just like back in March, BMJV persists in fronting for litigation giants, both in defiance of the German constitution and in defiance of basic logic (as if justice isn't the goal but merely an excuse by which to bypass the law)

FOLLOWING condemnations for an official acting utterly dismissive about the FCC's decision back in March (tossing out FCC ratification by admitting and accepting the constitutional complaint), the Federal Ministry of Justice and Consumer Protection (BMJV) issued the above statement, which is contemptible. Will EPO President António Campinos use that again for spin doctoring and will Benoît Battistelli have plans for Paris?

Probably not. The way we see it, BMJV mostly harms its own reputation and Germans too rightly complain about it. What good is a BMJV that deliberately ignores the German constitution? What part of "Justice" does it not understand?

"The way we see it, BMJV mostly harms its own reputation and Germans too rightly complain about it.""Germany ignores Brexit," one reader told us. "There are rumours that this has been inspired by the Tilmann paper," the reader said.

A rough translation: "The fact that Great Britain broke the Convention as a result of the Leaving Brexit does not prevent its implementation: The Regulations for Entry into Force in the Convention and its Logs should ensure that all three are involved in the contract States, the Federal Republic of Germany, France and Great Britain, already participate in the judicial system at the start of the Unified Patent Court. In this respect, it should be avoided, for example, due to the different duration of the ratification procedures the treaty initially entered into force with only one or two of the three states occurs. The reference to this has the purpose, the point in time of entry into force among those actually involved in the contract coordinate. Regardless of the fact that UK approval currently exists a departure from Great Britain has no influence on the applicability of the entry into force regulations in any case because these are to be interpreted in such a way that if one of these three states can not be foreseen by anyone, the entire entry into force for the does not hinder remaining participants."

"...are they eager to openly promote what Germany's top court deemed to be unconstitutional?"This is of course nonsense. It makes no sense for a lot of reasons and it makes one wonder if BMJV is run by lobbyists, not politicians. In fact, "this is totally insane," the reader told us. What are the people inside BMJV hoping to accomplish here? First of all, this won't pass. Secondly, they only stand to suffer (in terms of reputation) and further embolden people who grew tired of the EU, arguing that it disregards all sorts of laws and constitutions.

We note with concern that World Intellectual Property Review (WIPR) and its sister lobbying site, "Life Sciences Intellectual Property Review," are pushing for this illegal and unconstitutional plot again [1, 2], based on "EC official" (which again harms the EU's image). What are they hoping to accomplish? Breton was already bad enough... are they eager to openly promote what Germany's top court deemed to be unconstitutional?

We've meanwhile noticed this new comment citing the "recent research paper from Dimitris Xenos," a paper we alluded to here, and to quote:

The joint EPO-EUIPO study released last year has to be seen in the framework of the support given by the EPO to the UPC. European SMEs have been the fig leave behind which big industry and a select group of IP lawyers were hiding to push the UPC through. The same group is also advocating the necessity of the UPC in order to help the users of the patent system to recover from the damages caused by COVID-19. Please don't pull my leg.

A recent research paper from Dimitris Xenos, “The Impact of the European Patent system on SMEs and National States and the Advent of Unitary Patent”, published in Prometheus, Vol. 36, No. 1 (March 2020), pp. 51-68, comes to the conclusion that “objective evidence shows that the new legal/institutional developments amplify existing imbalances in technological and economic capacities that are already observed between and within member states, and between them and non-EU states in the current global conditions of technological competition”.

The figures used in the study, albeit older, are comparable to the actual figures, so that the conclusions in the paper are also valid today.

One of the conclusions of the paper is that “Objective evidence has emerged, albeit ex post, showing that the position of SMEs is very weak under the EPO system as their share of annual European patents granted is less than 10% and 17% in patent applications. These statistical results contradict the official justifications of the UPP, which focus on benefits for SMEs”.

A further one is “the democratic control of industrial property in national markets is an essential responsibility of the state. Yet, the state is being stripped of democratic control by the EU’s new, pseudo-federal patent system”.

In all meetings I have been in which the topic IP and SMEs was discussed, it was very clear that SMEs are frighten of IP as they consider themselves as underdogs in IP matters. This is for two main reasons. Firstly they cannot afford to spend a lot of money for IP, and secondly they constantly fear the threat of litigation stemming from large companies with deep pockets. They do not have a chance against them!

With the creation of the UPC it was question a long time ago of a kind of IP insurance for SMEs, but this idea has disappeared. Even without the UPC, the idea is worth thinking about.

Nothing against SMEs being made more aware of IP rights, but it has to be seen in the framework of their limited budget.

I have seen SMEs shaken by attacks from big companies, and even then, having to struggle to survive, they were in the end not able to afford patent protection.

I would therefore consider the present guest post as not looking at the deeper roots of the problem. Offer SMEs a safety net in litigation matters would be a beginning. Offer them real incentives to invest in IP, and help them to bear the cost!

It does not have to be for a lot of countries, but the patent they might obtain have to be solid and resisting attacks. But alas, this is not the case. Too many patents do not resist a strict scrutiny, and crumble at the first push. SMEs cannot afford huge portfolios of patents. Once one or two of their patents have been nullified, they turn their back to IP.

One of the problems is also their absence of lobbies. If a SME closes, the number of job losses is very small. They cannot say, like the big industry, if the state does not give us money we will lay off hundreds if not thousands of people.

That's the reality! Support for SMEs is badly needed, but also money.

At the moment it seems like Breton et al with their "European champions" just want to help multinational monopolies through the UPC; they don't care about SMEs and they certainly don't care about the rule of law. Just like BMJV, what we have here is a crisis and an insult to democracy. One easily gets the impression that so-called 'public' officials/servants are in fact serving nobody but large firms. This kind of behaviour can only lead to more EU exits and make radical parties seem "equally bad" (even AfD or UKIP). ⬆