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German Bar Association says Nein to patent court block effort

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Techrights

For people who want a less polished perspective on the goings on at the EPO and progress (or not) of the UPC, I can recommend reading Techrights:http://techrights.org/?stories

I find it a bit easier to use the RSS feed, and pick the relevant headlines: http://techrights.org/feed/

The organisational stance of Techrights is not strongly in favour of current EPO management, or the creation of a Unitary Patent Court, but you are free to weigh up the public statements and actions of those in favour and those against and make up your own mind.

Some of the goings on are less believable than the plot of a Dan Brown novel.

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Anonymous Coward

Re: Techrights

While the Techrights blog is sometimes a useful source for inside info on the EPO, most of it is clearly the ravings of a madman. He sees collusion and skulduggery around every corner.

Apparently even any innocuous factual report is "UPC Boosting!!!!111!!! OMG ROFLMAO" if it doesn't sufficiently acknowledge the evils of the system. He routinely denies facts that are there in black and white - "Today the parliament of [country] passed UPC legislation" - "FAKE NEWS! UPC BOOSTER!"

I'm sceptical about the merits of the UPC. But treat anything you read on Techrights with a truckload of salt.

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Pint

UPC and Battistelli lead to fear

Fear leads to anger, anger leads to hate and hate leads to alcoholism. The bar association knows where its interest lies ! Prosit

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Windows

@Pierre:

Are you implying that all lawsuits are launched by alcoholics, or just that they are inevitably launched in a drunken fury?

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It's been drawn to my attention (via comments on Kluwer and correspondence on Twitter) that the DAV is not the official German Bar Association, but instead is a voluntary association. The German Federal Bar Association (of which membership is compulsory) is the Bundesrechtsanwaltskammer (BRAK). This, too, was invited to file observations, but as yet they have not been made public, if such observations were indeed submitted.

An important thing to bear in mind here is that the decision on admissibility ultimately falls to the German Federal Constitutional Court. Thus, while the DAV opinion certainly provides one set of arguments in favour of inadmissibility, this is not a foregone conclusion. Many other organisations have also been invited to comment, but most German practitioners I've spoken to expect those organisations to take more or less the same line as the DAV.

My understanding is that the Federal Constitutional Court now has a range of options ranging from a straightforward written finding of inadmissibility at one end, all the way through to - at the other end of the scale - an oral hearing at which both the admissibility and the substance of the complaint are argued in detail. We will probably not know which option the Court will go for until it makes an announcement informing us. This could depend on how persuasive the judges find the arguments for admissibility/inadmissibility from either side.

The lack of transparency in this procedure overall is really quite striking. (If anyone can confirm that this is a general feature of German legal proceedings, do let me know!) The DAV is, in my opinion, to be commended for publicising its position even though many readers of this blog and others may well be in disagreement with the idea of the UPC.

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Don't believe the hype

The DAV's comments should not be taken at face value. The most recent comments on another Kluwer post illustrate why the DAV's submissions "amount to nothing more that smoke and mirrors, together with desperate attempts to gloss over gaping holes in the legal arguments":

http://patentblog.kluweriplaw.com/2017/12/12/prof-tilmann-fcc-several-reasons-reject-inadmissible-complaint-upca/

Whilst the EPO might be an international organisation that is afforded various privileges and immunities, this does not mean that it can operate without any thought to the constraints imposed by EU law. For example, the EPO's assessment of patentability must respect the provisions of the Biotech Directive. If this does not happen, then there could be serious consequences for the EU Member States. The failure of the DAV's submissions to acknowledge such complexities therefore provides yet another reason to take their views with a pinch of salt.

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A salty taste

That the DAV is supporting the view of the chairman of its IP committee should not come as a surprise.

That all the proponents of the UPC want this claim before the FGCC to fail is not a surprise either. One can thus expect similar views to be taken by all entities having a similar interest.

Should a truly independent body come up with this kind of arguments, I would be more inclined to say the claim is not admissible. On the other hand the view of a Professor of the Ludwig Maximilian University, Mr Ansgar Ohly, does appear biased as well.

There is still a fundamental question which has been left unanswered up to now: how can a court, the UPC, which is said not be a court of member states of the EU, have the possibility to address prejudicial questions to the CJEU?

This question has never been answered, and hence as long as this question does not receive a satisfactory answer, the whole discussion about the UPC as such, and post-Brexit participation of the UK in the UPC is no more than mere gambling.

That the EPO is not part of the EU law system is one thing, but the UPC is meant to be able to address the CJEU. And if it is not part of the EU law system, it appears legitimate for the GFCC to look into the matter. When one looks at the number of references to EU law in the UPCA, one wonders how such a contradictory position can even be adopted.

Independently of the complaint of Mr Stjerna, one should not forget that there are pending complaints before the FGCC relating to the working of the EPO. They have been admitted.

I can only agree that Techrights is only good at launching tons of drivel, assorted with the weirdest theories, and can ultimately not be taken seriously, even if sometimes nuggets of correct information may emerge.

So, whether you look at the DAV paper or at Techrights, have a pot of salt next to you!

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