The UK takes the final step out of Unitary Patent Court

It does not come as a big surprise, but it comes certainly with some bitter feelings. The UK takes the final formal steps towards its withdrawal from the Unified Patent Court project (UPCA). 

Already in late February, the UK government made it clear that the UK would not participate in the UPC. Contrary to the position of the government led by Theresa May, confirming UK commitment to the UPC project, Boris Johnson has expressed a clear line, a very neutral relation to the EU post Brexit. This means also avoiding any form of Court of Justice of the European Union - CJEU involvement, something that would not be possible should the UK proceed with its commitment to the UPC.   
 
The CJEU has a central role in the UPC agreement as the ultimate arbiter of EU law, and Article 20 of the agreement specifically states that the Unified Patent Court “shall apply Union law in its entirety and shall respect its primacy”.
UK out of the UPC for good!



The political will behind this step is firmly expressed in the parliamentary written statement in the House of Commons by Amanda Solloway (Parliamentary Under Secretary of State, Minister for Science, Research and Innovation ):

"UNIFIED PATENT COURT

I am tabling this statement for the benefit of Honourable and Right Honourable Members to bring to their attention the UK’s withdrawal from the Unified Patent Court system.


Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) in respect of the United Kingdom of Great Britain and Northern Ireland and the Isle of Man, and its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application (dated on 6 July 2017) (collectively “the Agreements”).



In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation.



The Agreements have not yet entered into force. However, in order to ensure clarity regarding the United Kingdom’s status in respect of the Agreements and to facilitate their orderly entry into force for other States without the participation of the United Kingdom, the United Kingdom has chosen to withdraw its ratification of the Agreements at this time. The United Kingdom considers that its withdrawals shall take effect immediately and that it will be for the remaining participating states to decide the future of the Unified Patent Court system".

The UPC Preparatory Committee has expressed its disappointment and informed that a new announcement concerning the effects of the UK withdrawal will be made in the coming days. It seems that after the German Federal Court adventure, the UPC is in need of some good news.
The UK takes the final step out of Unitary Patent Court The UK takes the final step out of Unitary Patent Court Reviewed by Frantzeska Papadopoulou on Monday, July 20, 2020 Rating: 5

6 comments:

  1. At least UK’s position is now clear, but this does not mean the ratification of the UPC is free of any problems.

    As Art 7(2) UPCA still exists it cannot be ignored, or it can be ignored at least by those wanting to ratify quickly. In any case it appears that Art 7(2) UPCA will have to be amended.

    It now backfires what happened during the negotiation leading to the UPCA.

    For the ratification it was enough to define the three countries having the most patents validated at a given date as necessary for the UPCA to enter into force, which meant Germany, France and the UK. Now UK’s position is taken over by Italy or even The Netherlands. Figures will tell.

    For fear of being tricked out with the location of the various locations of the Central Division, the three contenders only saw fit to anchor the locations of the central division in Art 7(2) UPCA.

    The UK is out of the UPCA, fair enough, but London is still in it. So what to do with London? Mr Tilmann proposed a declaration from the UK under Art 25(2) VCLT, which now is moot, as there is not yet a provisional application of the UPCA. This solution was anyway doubtful from the beginning.

    The other solution proposed in the explanatory notes for the new ratification bill was a common declaration under Art 33(1) VCLT of the remaining countries. It appears politically naïve to expect from the remaining countries, and especially from Italy or The Netherlands, to sign a common declaration saying that the London section can provisionally be transferred to Paris or Munich.

    There seems no clean way out than to amend Art 7(2) UPCA before the UPCA enters into force. This means a new round of ratifications and the corresponding delays.

    Now the question of the annual fees which were based on the annual fees of the big four, i.e. UK, DE, FR and NL becomes acute. It is not possible to sell fees at a level which comprised the UK once the UK is out. By taking the NL fees into account, The Netherlands could say with reason, that the work of the London Section should go to a new section located in The Netherlands.

    If Germany would nevertheless ratify with Art 7(2) UPCA as it stands, the risk is great that a constitutional complaint on this topic might be successful. One should also not forget the other constitutional problems as for instance the supremacy of EU law, which was brought in by the German Federal Constitutional Court itself.

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  2. Thanks to Attentive for summing it all up, from the point of view of an Observer with, I can imagine, no vested (financial) interest in the outcome.

    Observing the situation in Germany there is a delicious interplay here between the legislative, judicative and executive branches of a modern democracy that is under pressure to "deliver". The judicative branch could not have been any clearer, in signalling that the UPCA in its present form offends the Constitution of Germany. Nevertheless, the executive branch loudly announces "Full Speed Ahead" towards a new vote in the Parliament ie another chance for the elected representatives of the people to wave the un-Constitutional dog's breakfast through the legislature. Is the Justice Ministry wilfully blind, suffering from cognitive dissonance, ambi-dextrous, with one of its hands ignorant of what the other is typing, or what?

    Omnishambles is something we know in England. But the disease seems to be spreading out of control.

    China, Russia, never mind the USA, observing the farce, must by now be laughing their socks off.

    Europe, you can do better than this!

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  3. Dear Frantzeska,

    you write: "It seems that after the German Federal Court adventure, the UPC is in need of some good news. "

    Well! the UK withdrawal is good news actually, as everything else would have brought uncertainty about is status and the compatibility with the G1/09 of the CJEU.

    The other good news is that Germany has already started the re-ratification of the UPC ratification bills.

    So the good news are already there...

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  4. But what does a ratification would bring if it ends in a wall.

    Ratification yes, but please do it intelligently and not simply to please some lobbies from the big industry and from international acting lawyer firms.

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  5. Dear Anon,

    Please see my comments on the following post:
    http://patentblog.kluweriplaw.com/2020/07/20/uk-withdraws-ratification-of-the-unified-patent-court-agreement/?doing_wp_cron=1595352540.6967189311981201171875

    The legal effects of the UK's (attempted) withdrawal are far from clear. However, one thing that is certain is that the two (current) Protocols associated with the UPC Agreement cannot now be brought into force, as both explicitly require ratification by the UK. There are also serious doubts over whether there is any mechanism under the Vienna Convention that can "rescue" the UPC Agreement in the light of the UK's (attempted) withdrawal. So perhaps not such good news after all.

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  6. @ Anonymous

    I am not sure that the "re-ratification of the UPC ratification bill" is such a good news.

    If one has a look at the problems brought forward in reply to the consultation by the German Ministry of Justice on the new ratification bill, it can be concluded that should the ratification go through as it stands, it will end up in a disaster, which might kill the UPC for good.

    That seems also the conclusion drawn by Max Drei.

    @ Max Drei

    You are right, I have no vested (financial) interest in the outcome. I am for European integration, but not for an integration which goes against the interests of Europe in general and European SMEs in particular. Opening a single door for non-Europeans to attack European industry cannot be good for Europe.

    With the UPC as it stands, the winners will be the big industry and internationally active lawyers firms.

    As far as the German Ministry of Justice is concerned, one could ask the question: is there a pilot in the cockpit? My answer is yes there is, but the Ministry is piloted by lobbies in search of their interests and not in seeking to help Europe as a whole. That is not good, neither for Germany nor for Europe.

    Europe is in a bad shape and could certainly do better. But what should be done better?

    Boris must be laughing when he sees how Europe has become a mere money dispensing association in which each country is not looking to a common goal, but how to get as much money out or the least money in. He could have stayed in, as after all, it is what the UK always wanted the EU to be.

    All the founders of the European Union had seen how much damage wars could do in Europe, but if the EU continues to resume itself in being a large and free market in which only the toughest will survive, and in which nationalistic governments will pursue their destruction of democracy with the help of EU money, then it is superfluous.

    ReplyDelete

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