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Monday, 28 November 2016

BREAKING NEWS: UK signals green light to Unified Patent Court Agreement

It is very difficult making predictions, especially about the future.

This Kat, if you had asked him last week, would have suggested that the most likely outcome for the Unified Patent Court was (in no particular order) that it would either not happen at all, or would proceed without UK involvement.  It seems he would have been wrong.  Today, in relation to the meeting of the EU Competitiveness Council, attended by Baroness (Lucy) Neville Rolfe, the minister with responsibility for Intellectual Property, it has been announced:

"The UK Government has confirmed it is proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA). 

This is part of the process needed to realise the Unitary Patent and Unified Patent Court. Under the new regime, businesses will be able to protect and enforce their patent rights across Europe in a more streamlined way - with a single patent and through a single patent court. 
The court will make it easier for British businesses to protect their ideas and inventions from being illegally copied by companies in other countries. 
UK Minister of State for Intellectual Property, Baroness Neville Rolfe said:
"The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe to develop this option."
"As the Prime Minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union.  We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy.  We want it to involve free trade, in goods and services.  We want it to give British companies the maximum freedom to trade with and operate in the Single Market - and let European businesses do the same in the UK."
"But the decision to proceed with ratification should not be seen as pre-empting the UK's objectives or position in the forthcoming negotiations with the EU."
Following the announcement today, the UK will continue with preparations for ratification over the coming months. It will be working with the Preparatory Committee to bring the UPC into operation as soon as possible." 
This makes the coming into force of the UPC, with its central division branch for Pharma and Life Sciences in London, pretty much a certainty.  How things will proceed after that remains, at least for this Kat, rather unclear.  The IPKat will keep you posted!

42 comments:

Peter Bonetti said...

"pretty much a certainty" is a pretty bold claim in today's world Darren!

Anonymous said...

Postpone the difficult questions for later.

Anonymous said...

What a pointless exercise.

Why should the UK ratify an agreement it may well be forced out of during Brexit negotiations? Is the UK really so naive as to think that the EU is not going to look after itself first?

Without a guarantee the UK should sit still and let the negotiations play out.....

IP Pariah said...

This is beyond exciting. The wheels are still on the bus. It remains to be seen if there is sufficient fuel in the tank to reach the next service station, let us hope the journey is largely downhill and without too many red lights.

Kant said...

Wow! A case of the UK sacrificing its UK litigators to help smooth Brexit negotiations? Ratify so as not to block the UPC and then hope (or rather desperately wish) that some fudge deal will be found to allow the UK to participate at some point in the future when no longer an EU state.

Gilman said...

Bonkers. Absolutely bonkers. How can we be signing up to the UPC whilst simultaneously leaving the EU and ending the jurisdiction of EU courts over the UK?

Nothing about the way Brexit is being pursued by HMG makes sense, but then I guess we shouldn't expect differently when HMG has been set such an impossible task.

Anonymous said...

So we are going to have UE rights in force across Europe (in the UK) at the time of Brexit.

Will we also get transitional provisions to turn those into UK patents?

Jumped_the_shark

Anonymous said...

I fear that this is the worst of both worlds for the UK profession. I had watched my Trade Mark colleagues who are today in an EU system and who are faced with the prospect of exiting it with a certain smugness until today. Now we have contrived to enter a system that we may need to leave.

Blinding negotiation tactics too Neville-Rolf!

Of course it is what CIPA appears to have been pushing for (although who knows what they have been doing really as they move in mysterious ways), either because they are skilled tacticians or terribly naïve. Time will tell which it is.

Proof of the pudding said...

Astonishing!

Perhaps the conclusion is that this improves the UK's negotiating position, especially if the court gets well "embedded" in London?

Not the best outcome for patentees, though. Even more uncertainty added to the UPC (which creates a great deal of uncertainty on its own - particularly during the transitional period). Should be fun working out all of the permutations for this one!

Anonymous said...

Finally - the UPC is coming into farce!

Bottom_Feeder

Anonymous said...

Teresa May. October 2016. Conservative Party Conference.

"Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end."

"We are going to be a fully independent, sovereign country - a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts."

"But let’s state one thing loud and clear: .... And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen."

Anonymous said...

Well, that covers my CPD requirements for the foreseeable future: learning about all of the permutations and possible consequences of UPC, Unified Patent & Brexit.

All we need now is for Germany to delay ratification: until after next year's federal election or until there is clarity on Brexit. Well, at least more clarity on Brexit: I'm sceptical as to whether there'll ever be complete clarity on Brexit.

NeverADullMoment said...

And the roller coaster continues...wow, just wow, haven't had this much excitement in years, please pass the paper bag, I'm feeling a bit queasy. So according to our illustrious representative for IP, the UK is continuing with its efforts to sign up to a deal that will force sovereignty of the EU court system on its national courts even if it is no longer a member of the EU - can't imagine how that will go down with the erudite population that so loudly voted to "take back control"...and, in passing, one in the eye for the greedy Italian governement though, eh, thinking its day had come to shine and bask in European institutional glory ? I wonder what Michel Barnier thinks of all this, he was after all, the mouthpiece of the political rationale to cajole the various EU states into agreeing to the UPC in the first place - the mind boggles !

Anonymous said...


It seems Britain really does want everything: to leave the EU but to remain part of an important new EU patent system (which most of the Europeans outside Germany, France and UK didn't want anyway). How can it think to ratify the UPCA when is has voted not to be part of the larger EU?
Isn't this a case of the bureaucratic machinery wanting to plough on when the field has already disappeared in the storm?
Madness indeed and probably a waste of tax payers money..
Sorry to say (as a UK ex-pat lawyer) but the UK government behaving like a big kid that wants to eat the cherries and cream on the top of the cake but has already refused to eat the sponge layers....
A good parent would say, sorry Sweetie but you can't have it all...

Jeremy (non Kat) said...

This is just a pressure release valve - they had to say something so they've said we're going to keep going. No timescale on actual ratification, or even a commitment actually to ratify.

Anonymous said...

These are truly astounding news that deserve a much wider circulation than the cozy club of patent specialists.

But will anyone care in these times that some call "post-truth"?

Anonymous said...

Which department would ratify the Agreement? Is Neville-Rolfe's or Boris's?

Anonymous said...

Attention should be paid to the addendum:
"The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges."

That means she doesn't consider it an EU body and thus not affected by Brexit.

OK?

Proof of the pudding said...

@Jeremy

I too spotted the absence of a firm commitment to ratify.

If this is simply playing for time, however, it would have been better if the IPO had avoided statements such as "It [the UK] will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible". If that is not intended to mean what it so clearly implies, then the UK will end up burning a lot of bridges... which would not be the best of starts to exit negotiations with the EU Member States!

A Nonni Mouse said...

Perhaps she hasn't read the opening paragraph of the brochure on the UPC web site helpfully called "An Enhanced European Patent System"

"In December 2012 the Council of the European Union and the European Parliament agreed on two regulations laying the foundation for unitary patent protection in the EU. Shortly afterwards, in February 2013, 25 EU Member States signed the Agreement on a Unified Patent Court (UPC)."

I know she has been busy lately...

Anonymous said...

Anon 18:53,

Not Ok.

The UPC refers questions to the EU court. So will EU decisions have two incarnations - one ignoring the EU court decisions, and one for continental Europe?

Anonymous said...

http://order-order.com/2016/11/28/may-accepts-supremacy-eu-law-patents/

Oh great. This is going box office.

Do not pull my leg said...

Sorry Darren, but "proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA)" does not mean the UK will ratify the UPCA. The ratification is anything but certain.

The move is simply to gain time and to try to have a better bargaining position when the actual Brexit negotiations are starting.

The day UK will sign the protocol on immunities, I will believe that ratification is on its way. Before this, it is just gobbledygook.

In clear it means UPC is further delayed. As long as UK threatens to ratify the UPC, but actually does not do so, the UPCA will be held in limbo. It is meaningless to continue with the preparations if there is no clear will to ratify. The present statement is anything but a guarantee for ratification.

And even if UK would ratify, could any sensible representative advise his clients to go for a unitary patent when it is not clear what the future of the UPC will be once UK has left.

A proper decision on the ratification will not become before the start of negotiations under Art 50 Lisbon. It should be by March 2017, or even later when taking into account the legal battle about the involvement up front of the parliament.

The situation created by this statement is not very pleasant for the remaining contracting states, but that is not to be a surprise. It is like the participation in the EU: we want to participate, not for the sake of being a member, but simply to insure that nothing can happen which goes against our interests.

The only way for the other contracting state to get out the deadlock is to give a time limit to the UK for deciding whether they want to ratify or not.

Anonymous said...

@Do not pull my legs

Simply bullshit you're telling,noting else

Anonymous said...

I'm forging ahead with my castle-building program for my goldfish, even though it has been floating on its side for a week.

Anonymous said...

Good news for patent trolls.

Gutewicht said...

As some other commentators have remarked already, the government statement should not change much for the moment.

Bearing in mind the history of the UPCA and its contents, it is a rather bold claim to say that the UPC was "not an EU institution". On the other hand, this is pretty much along the lines shown by the UPC proponents from the patent profession. Also, we have repeatedly seen such formalistic sharade being applied in the very same context, e. g. when it comes to the solution on Art. 6-8 or the position of the EPO in relation to unitary patent protection. It is rather characteristic of the project as such, that a government obviously sees itsef forced to rely on positions as weak as these.

Anyhow, the announcement should bring the German ratification procedure back to life shortly. Should it be completed smoothly (which is not certain), I would expect that at least the German ratification instrument will not be deposited until there is a binding solution of the UK ratification issue instead of cloudy declarations of intent.

Glad to be out of the madhouse said...

From the official news release: "The UPC itself is not an EU institution, it is an international patent court."

Ah, sure. Except that Art. 20 of that very agreement you intend to ratify explicitly says that the UPC shall apply European Union law in its entirety and shall respect its primacy, and Art. 21 adds that decisions of the Court of Justice of the European Union shall be binding on the UPC.

I knew we had now entered the post-truth era, but we are now into post-logic territory as well...

What would be funny now would be if Germany started dragging its feet on ratification, to get some extra leverage in the Brexit negotiations...

MaxDrei said...

I'm with the commenter "do not pull my leg".

The announcement was devised by little Baldricks, completely clueless how mainland European minds work, who think they know how to "game" the forthcoming BREXIT negotiations, who have their cunning little plans how to come out of it with the best "deal" for England.

To those infected by wishful thinking I would suggest that the announcement reveals no HMG commitment whatsoever, just more playing for time, by an Organisation that hasn't a clue what to do next.

Anonymous said...

@MaxDrei Your comments suggest that you believe that mainland European minds and English minds work differently? At best that sounds like some mild racism, or possibly you adhere religiously to national stereotyping? Without even appreciating which nations are involved: "Brexit means UK exit". At least for the time being, the little Baldricks are meant to be devising cunning plans for the best "deal" for the UK.

I entirely agree that the little Baldricks don't actually have any cunning plans and that HMG hasn't a clue what to do next. Otherwise we wouldn't need any announcement before actual UK ratification. Perhaps some political justification was required for the continuance of the ongoing UPC project at Aldgate Tower in London?

Do not pull my leg said...

Dear Anon from 22.40 GMT,

It is your right not to agree with my statement, but to say the least, you could have said it in a polite way.

By using excessive language you simply do not help your cause, to be clear you deserve it. It reminds me of people pointing a finger at others; by doing so, they at least point 3 fingers at themselves....

I have nothing to withdraw from my statement. I am apparently not the only one thinking along the same line.

Just a historic reminder. The UK joined the Institut International des Brevets (predecessor of DG1), but managed to obtain a ceiling to its participation, in spite of clear rules stating that the participation on the budget of this institution had to be in proportion of the number of applications filed.

This is exactly my point. UK wants to be it, but not to participate as such, but merely to insure that nothing can be done against UK interest.

Anonymous said...

@MaxDrei

Also bullshit beside reality!

Anonymous said...

Anon at 11:43 - "Otherwise we wouldn't need any announcement before actual UK ratification. Perhaps some political justification was required for the continuance of the ongoing UPC project at Aldgate Tower in London? "

Actually, it's much simpler. HMG needed to give a firm decision at yesterday's Competitiveness Council, because otherwise other European countries were planning to go ahead without us.

Anonymous said...

@Do-not-pull:

"Yes Minister: The Writing on the Wall (#1.5)" (1980)

Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last 500 years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it's worked so well?

Jim Hacker: That's all ancient history, surely.

Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn't work. Now that we're inside we can make a complete pig's breakfast of the whole thing: set the Germans against the French, the French against the Italians, the Italians against the Dutch. The Foreign Office is terribly pleased; it's just like old times.

Jim Hacker: Surely we're all committed to the European ideal.

Sir Humphrey: Really, Minister.

[laughs]

Jim Hacker: If not, why are we pushing for an increase in the membership?

Sir Humphrey: Well, for the same reason. It's just like the United Nations, in fact. The more members it has, the more arguments it can stir up. The more futile and impotent it becomes.

Jim Hacker: What appalling cynicism.

Sir Humphrey: Yes. We call it diplomacy, Minister.

----
It rings even truer today than thirty years ago.

By sheer coincidence, Mrs. Teresa May had a summit meeting yesterday with that other committed European, Mrs. Beata Szydło?

Anonymous said...

@Anonymous 16:55

Thats right and the first comment I saw that gave a realistic view of the political situation. The announcement of the UK Government is absolutely clear and, of course one the other states can trust on: UK will ratify as soon as possible. Otherwise the UK Government would erode the principles of political cooperation in Europe since 1945. No Europen Government is interested in such a pre WW1 behaviour because it will strike back against its originator very quickly ...

MaxDrei said...

Many thanks to the poster who has shown us the dialogue from a 1980 episode of "Yes Minister". Once again, as we laugh uneasily, we see the unique ability of humour to take us quickly to the sad heart of the matter.

Ever since the glorious days of Empire, England (but not Scotland or Wales, not Northern Ireland or The Republic of Ireland) continues to see itself as qualitatively different from, any other European nation, and much superior to them all. When you think how London has nuclear weapons, a permanent seat in the UN Security Council, and the "5 Eyes" Club membership in the USA's world-wide security blanket, you can understand why it sees itself even now as so superior.

And it is this sense of superiority that makes the City of London so successful.

But, as the Yes Minister dialogue brings out, it sure does poison England's relations with all other European States.

I don't know, but I suspect that France suffers under delusions of grandeur not so very different from those we see in England. Can the French laugh at themselves though? Has there ever been anything like Yes Minister on French TV?

Gilman Grundy said...

@MaxDrei -

"Ever since the glorious days of Empire, England (but not Scotland or Wales, not Northern Ireland or The Republic of Ireland) continues to see itself as qualitatively different from, any other European nation, and much superior to them all."

There is a somewhat paternalistic view in some corners of the continent that the Welsh, Scots, and Northern Irish need rescuing from the nasty English (to whom all wrongs committed by the ever-wrong United Kingdom are to be ascribed). Next to the lying mendacity of the Leave campaign, this paternalism, this opposition to the very idea of Britain, bears the heaviest blame for turning the UK against the EU. The idea that this opposition is limited only to England holds little water when the Welsh also voted to leave, and the result in Northern Ireland was a relatively close vote to Remain.

Personally I do not see any plotting going on, but simply stupidity and poor leadership from the British government. Leaving the EU and ratifying the UPC makes no sense. As a Remainer I of course welcome us apparently planning to Remain in at least one (for all intents and purposes) EU organisation, though I would of course be happier still if we were to just give up Brexit for a bad job.

Headache said...

@anonymous 29 Nov 17:10: Thank you for the transcript. Loved the text. But you've sent me down anotehr time-drain, as now I want more of "Yes Minister"...

For anyone wanting to watch a digital copy of the original: Yes Minister: Why Britain joined the European Union" (link to Youtube)

Examiner said...

IPcopy: the UK and UPC: is the UK trying to have its cake and eat it?
Interesting read about behind-the-curtain rumours regarding the UK announcement...

Les ENArques enchainés said...

I don't know, but I suspect that France suffers under delusions of grandeur not so very different from those we see in England. Can the French laugh at themselves though? Has there ever been anything like Yes Minister on French TV?

Having you ever tried poking fun at a real live ENArque?
It is likely to be a very hazardous venture.
They may well have a sense of humour somewhere, Jim, but not as we know it ...

Look what happened to Bernard Connolly.
https://euobserver.com/news/929
http://www.telegraph.co.uk/news/worldnews/1325398/Euro-court-outlaws-criticism-of-EU.html

Look at what is happening at the EPO.

Cynic said...

And the Baroness is now moving on (to presumably greater things rather than as any disciplinary action). New hand on the tiller? And which direction will the joining go? Steady as she goes, or hard about and head for safe waters??

Anonymous said...

Bringbackalib. Says...

S o Lucy lasted 24 weeks at full throttle
A UPC genie needs to be squeezed back in the bottle
C ould be a rolling stone gathers no moss
K ing Batters loses a chinchilla,is mourning the loss
E ager beaver sought to lay the ghost
D id Lady Garden apply for the post?

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