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Thursday, 8 September 2016

Does David Davis want to ratify the UPC Agreement?

The AmeriKat has been known to be a beacon
of fuzzy light in dark times, thanks to
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The AmeriKat has shied away from blogging about the fate of the UPC and the UK's role in the UPC post Brexit because, frankly, no one really knows what is going to happen or when.  But a dear IPKat friend alerted her to the following exchange in the House of Commons on Monday between Cheryl Gillan MP and David Davis (Secretary of State for Exiting the European Union):

"Mrs Cheryl Gillan (Chesham and Amersham) (Con)
May I add my congratulations to my right hon. Friend; it is good to see him back in his natural habitat at the Dispatch Box. Businesses in the UK are concerned not just about access to the single market, but about other matters. A unitary patent and the proposed new Unified ​Patent Court has been eagerly anticipated by businesses, which currently have to file for separate patents in separate countries at great cost. The UK was due to ratify that later this year alongside Germany and one other country. Will my right hon. Friend give businesses the undertaking that the UK will ratify this agreement before the end of this year and that we will continue to play a full part so that British businesses benefit from being able to be part of a larger unified patent authority?

Mr Davis
For as long as we are a member of the European Union, which by the sounds of it will be at least two years, we will meet all our obligations and we will take our responsibilities extremely seriously, including the one that my right hon. Friend has outlined.

Mr Speaker
May I gently ask the Secretary of State to face the House? Sometimes his answers are not fully heard. They are heard by the person at whom he is looking, but not by the House.

Mr Davis

All I can do is plead inexperience."

Does this exchange mean that the UK is going to ratify the UPC Agreement soon?  The AmeriKat thinks it is unlikely, but cannot blame anyone who is looking for slivers of hope wherever they can find it.

19 comments:

David said...

That sounds to me more like a stock answer rather than a commitment to do anything. While the UK remains a member of the EU we are under a lot of obligations, such as complying with the primacy of EU law, but ratifying new agreements is not one of them.

Unclubbable said...

"A unitary patent and the proposed new Unified ​Patent Court has been eagerly anticipated by businesses, which currently have to file for separate patents in separate countries at great cost."

There is almost nothing accurate about this statement. It's a great shame to see our elected representatives display such a startlingly poor grasp of the subject-matter on which they take decisions.

Ellie Wilson said...

I noticed that at the Managing IP European Patent Forum this week Margot Frohlinger of the EPO has suggested that UK could either join UPC via a separate agreement or under Article 142 of the EPC.

This is not really news - in terms of the massive uncertainty, or the need for external agreement if the UK is to participate at all - as much as it is perhaps interesting because of the source.

Maybe, maybe it justifies having a bit of optimism, but, like Amerikat, I'm not holding my breath.

Anonymous said...

This is news for massive pessimism as it shows that David Davis has zero knowledge or understanding of the UPC. Unless and until we ratify the UPC we have no obligations regarding the UPC. We certainly don't have an obligation to ratify. Therefore it seems that his answer is a politician's way of saying "I have no idea what you are talking about". Regardless of whether you want the UK to sign up to the UPC or not, David Davis having no knowledge of the UPC after almost two months in his job can't be a good thing.

Glad to be out of the madhouse said...

Quite frankly, I'd merely understand Mr. Davis' reply as: "Unified what!? I haven't the foggiest of what she's talking about. Best to just follow Tautology Tess' lead and reply with something about as meaningless as "Brexit means Brexit"."

Anonymous said...

Probably, there is a priority list of Brexit subjects. It is difficult to imagine that the UPC is high in the rank there. I would say the UPC might land in a package deal with other subjects. I would not expect more from Mr Davis at this moment.

Proof of the pudding said...

"we will meet all our obligations and we will take our responsibilities extremely seriously"

This is meaningless in the context of the UPC. As David has correctly pointed out, the UK is not obliged to ratify the UPC. Moreover, even if the UPC is viewed as a "responsibility", it is perfectly possible to take it seriously without ratifying the Agreement.

It is looking like patents really are quite low down the government's agenda at the moment. Though SPCs do get a very brief look-in, there is not one single mention of patents (let alone the UPC) in the UK EU Life Sciences Transition Programme Report. Make of that what you will!

I have to say, though, that I am fascinated by all of this talk about the UK ratifying the UPC and then participating under Article 142 EPC post-Brexit. Has anyone asked the Court of Justice of the EU whether this would be compliant with EU law? Just because Article 142 is in the EPC do not assume that it is kosher. Remember that EPC2000 was drafted well before the CJEU issued opinion 1/09, which squashed the originally envisaged form of the UPC.

Steve Peers said...

It's not possible for non-EU countries to sign up to the UPC due to the CJEU judgment. If the UK signs up before it leaves the EU, it's not claim what happens.

I'm not a robot said...

By the way, not even the unitary patent is compatible with Art. 142 EPC...

TreatyNotifier said...

In all speculation we could also see the UK become the "new Italy": party to the unified patent court for regular european patents, but (new?) unitary effects not applying...

Interestingly (to me) also the Netherlands proceeds with the unified patent court. Its senate approved the convention without debate after the UK's Brexit-vote, without any question regarding entry into force criteria etc (... without any questions or vote at all). On 6 September the approval act was published, which means deposit of the instrument of ratification is the only step left....

The Cat that Walks by Himself said...

RE: On 6 September the approval act was published ...

I read these lines with some regret and have a feeling that there is significant rush with the UPC Agreement ratifications.

Many arguments have been presented in the context of the UPC Agreement. The more I think about it, the more certain I become that It would be beneficial for the EU to:
(1) Set up the Unified Patent Court without a Unitary Patent. To see whether things work.
(2) Limit the jurisdiction of the UPC to cases with at least a 3-Member States cross-border effect and certain value of the dispute.
(3) Revise the Agreement in 5 years and, then, to decided whether it can be implemented in the EU-wide scale.

In this way, companies willing to litigate cross-border could do that, while the alternatives to the UPC would stay intact until the UPC proves effective.

Anonymous said...

"The UK was due to ratify that later this year alongside Germany and one other country".

Why not 'alongside one country and France" ?

Anonymous said...

Because France had already ratified!

Mark Summerfield said...

The best that can be said for this exchange is that it is marginally less vacuous than what currently passes for "debate" in the Australian parliament.

The sad fact is that Westminster-style parliaments, with their modern use of "questions" primarily as a form of political point-scoring, rather than as a means of actually advancing the business of government (i.e. what we taxpayers employ then to do), are increasingly giving democracy a bad name. This is why Australia had five Prime Ministers in as many years. It's stupid, it's unproductive, and its main purpose is to trip people up and/or to make them look bad, to undermine their positions.

In this case, what that means is that neither the question, not the answer (both of which display alarming ignorance) are of any consequence.

As an aside, I'm not sure what the final exchange between the Speaker and Mr Davis contributes to this post, other than to make Mr Davis look like a bit of a n00b!

Anonymous said...

Not quite sure who or what prompted Mrs Gillan's question but she obviously has not see IPFed's policy position - which is very clear: no UK ratification without a guarantee of UK participation in the UPC post Brexit. That guarantee cannot be given at the moment - the legal position is very far from clear - so it would seem she is not aware that UK industry, at least as represented by IPFed, does not want a mad rush to ratify when we don't know what that will lead to. All sorts of complications will arise if the system starts with the UK and then the UK has to leave. Worst of all worlds. Great if the UK can participate ultimately but that is miles from being clear, so miles from a guarantee. UK ratification now would be politically impossible to justify as things stand, and contrary to the express position of UK industry at least as stated by IPFed. An awful lot needs to happen for the UK to contemplate ratification.

Anonymous said...

Mark, David Davis is an extremely experienced government minister and MP. The exchange with the speaker is meant to be ironic and is an example of what passes for wit in the house of commons. At best, such wit is at approximately the same intellectual level as teenage boys' banter.

Meldrew said...

Interesting UK counsel opinion here.

No legal bar to UK participation in UPC - only political issues.

Proof of the pudding said...

I find the legal opinion mentioned by Meldrew to be very interesting indeed.

The legal arguments are certainly well considered, as are the various points that the authors of the opinion believe are essential prerequisites to the UK's participation in the UPC. However, in my view, it is the nature and number of those prerequisites that represent the final nail in the coffin for the UK's participation.

Not only would multiple (national and international) new legal instruments be necessary, but the EU would need to agree to various amendments to the legislation governing the jurisdiction of the CJEU. If that were not a tall enough task on its own, then the final pieces of the puzzle make the task virtually impossible.

Firstly, the UK would (with regard to cases before the UPC) need to submit to the supremacy of Union law in its entirety. It is very difficult indeed to see how this could be done when the UK is not an EU Member State, particularly as cases involving IP rights before the UPC could touch upon issues covered by a wide range of different EU laws (eg competition law, the Biotech Directive, other EU legislation containing provisions affecting patents or SPCs, and general principles of EU law). Is it really possible that the UK government would accept being bound, post-Brexit, by such a range of EU laws (including potential future EU legislation) just to ensure that the UPC goes ahead?

Secondly, the UPCA would need to be amended. Whilst that is clearly possible, there is the question of when the relevant amendments would be made. Whilst those amendments could be made in anticipation of all of the other conditions for the UK's participation being met at a later stage, are the other Contracting Member States to the Agreement really going to agree to this instead of pursuing alternative amendments that would eliminate the need to rely upon the UK's participation? Perhaps this will happen, but the evidence suggests otherwise (particularly the various attempts that have already been made to argue for new homes for the divisions of the UPC allocated to the UK).

Perhaps it is time to stop flogging this particular horse and instead focus efforts upon finding an alternative way of reaching the desired destination.

Anonymous said...

I agree with the previous post. Unfortunately the reaction to the consequences of Brexit on the UPC amongst many in the patent community (especially by the EPO) is naïve at best and wilfully blind at worse. To be clear UK participation in the UPC is dead, and the UPC itself is seriously wounded -perhaps fatally so. UPC will not happen any time soon. I appreciate this is frustrating given it came so close. But it does not serve the interests of UK based applicants or those who desire UK patents to pretend otherwise and to do so is in danger of making a bad situation much worse.
I comment as a passionate European and patent attorney who has worked in house for many multi-national patentees. I have spent many years living in the EU as a UK ex Pat. After recently returning to live in the UK, I was bitterly disappointed by Brexit, which I believe will be a disaster. However UK ratifying the UPC notwithstanding the June result (even if possible) would simply play into the hands of those who voted to leave as it would be an illustration of elitist arrogance which rather makes their point for them.
UPC won’t happen with the UK as the political obstacles to UK participation in UPC are insurmountable. The patent community just doesn’t have the political clout to persuade the UK government to take the political risks and use up their limited political capital in Europe by doing so.
For the UK to attempt proceed with UPC also ignores a critical voice which is that of the user. The UPC was always a solution looking for a problem. Even before Brexit, despite the EPO propaganda, I did not sense a large push for industry to use the UPC, who were largely ambivalent at best. Indeed the risk of pan EU injunctions was as much a potential huge downside for EU industry from UPC as it was an opportunity.
The present post grant arrangements have largely worked well for 40 years. As a very low proportion of EU patents are ever litigated, I always felt UPC was a post grant tail wagging a pre-grant dog. The UPC has always been a political not economic project based on questionable assumptions and statistics from EPO, and did not properly reflect what industry or most users wanted.
The critical risk from Brexit (and for that matter the UPC) is prolonged uncertainty. For the UK to ratify UPC now will merely heap yet more legal uncertainty on top of a massive post Brexit legal black hole. Who is to say that any fudge that allows UK to join UPC, however cleverly thought through, would be confirmed by the CJEU, given their intense suspicion of the whole endeavour? Why would any applicant take the risk of obtaining UPC patents, if their UK patent rights may be at risk at some unknown point in the future?
For UK to ratify UPC now could drive applicants who desire UK protection away from the EPO to file direct at the UKIPO. It may even put at risk EU patents outside the UK thus making the UPC even less attractive for all users. Worse case it might deter all applicants from using the EPO at all, if they are forced into a system based on legally shaky foundations.
The only sensible option is to pause, wait until the UK leaves the EU and then introduce a revised UPC to cover the remaining EU states who still wish it. Of course a UPC without the UK is less attractive to applicants and a disaster for the UK patent profession. It means no UK based court. But that is one of the very many unfortunate consequences of a poor decision to leave the EU. Revision of the UPC agreement may indeed open up debate that will question the merits of the UPC at all – no bad thing given the rushed and poor quality debate in the EU parliament. However the UK is on our way out, that is no longer our concern and we can have no say on this. Again this is the harsh reality of what leaving the EU means, a lack of influence of UK stakeholders in EU affairs.
But to follow the UPC to the bitter end without pause could seriously weaken a supranational patent granting system in Europe that has worked effectively and served applicants well for many years.

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