tag:blogger.com,1999:blog-5574479.post7772431524668279714..comments2024-03-19T13:13:18.609+00:00Comments on The IPKat: The UPC after Brexit - is CJEU jurisdiction a deal-breaker?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger35125tag:blogger.com,1999:blog-5574479.post-18361867356737580502017-04-21T10:53:19.593+01:002017-04-21T10:53:19.593+01:00@Kant
Not "hype", just idle speculation...@Kant<br /><br />Not "hype", just idle speculation.<br /><br />Please note that my previous comment did acknowledge that it is not just the Tory party that may have broken the law. The reason for focussing my speculation upon them was simply because they won the election... and then set in motion the course of events with which we are now all too familiar.<br /><br />You have to admit, though, it is perfectly possible that the benefits of "wiping the slate clean" with regard to potential invalidity of previous election results were an important motivating factor behind Theresa's decision. I'm not saying it's a certainty, merely a possibility... and an interesting one in view of the fact that little else of consequence seemed to have changed between 29 March and 17 April.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-61080984238642509272017-04-21T09:52:03.004+01:002017-04-21T09:52:03.004+01:00Proof - the expenses issue relates to how the cost...Proof - the expenses issue relates to how the costs for a "battle bus" should be characterised - national campaigning or local expenses, and for your information, Labour are being investigated for exactly the same reasons. To hype this into a reason for calling a general election and more bizzarely influencing the Brexit decision are, quite frankly, ludicrous.Kantnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-88094771835283480682017-04-20T14:07:29.839+01:002017-04-20T14:07:29.839+01:00@Anon
Or perhaps it is not unrelated to police in...@Anon<br /><br />Or perhaps it is not unrelated to police investigations into alleged breaches in spending limits in the last general election? As those investigations relate to about 20 or so Tory seats, findings of wrongdoing in connection with just over a quarter of them, and the by-elections that would follow, could have seen Theresa's current majority wiped out.<br /><br />Indeed, the more that I think about it, the more that the possibility of by-elections looks like it could have been a decisive factor. For example, it might be hard to persuade people to vote for your candidate if the only reason for the vote is that your party has broken the law. Also, who knows what the timing of the by-elections could have been? With respect to the Brexit negotiations, the timing could have been very poor indeed for Theresa.<br /><br />The saddest thing about all of this is thinking about how things might have been different if spending limits had not been breached by any party (but particularly the Tory party). Would Cameron have been elected with a majority? Perhaps not. And if not, then most likely there would not have been an EU referendum.<br /><br />So does that mean that there is a possibility that Brexit is happening as a direct result of criminal acts? I guess we will never know. However, one thing that I am sure of is that it would have been <b>much</b> more sensible for Theresa to call an election <b>before</b> triggering Article 50.<br /><br />To use an analogy, you would be (rightfully!) alarmed if, shortly after taking off, the pilot of the plane in which you were travelling announced that there will be a vote on who should pilot the plane for the rest of the journey... but that if the result is anyone other than the current pilot, then they will have to somehow board the plane mid-flight, as there is no way that the plane can be stopped.<br /><br />Despite this, I have no doubt that Theresa and her colleagues will have the bare-faced cheek to argue that it would be dangerous to change leader (or, in my analogy, pilot) at this stage. Such is the way with modern politics.<br /><br />I have to also admit to feeling sorry for the devolved administrations in Scotland and Northern Ireland. This is because, from their perspective, it is hard not to interpret Theresa's decision as her effectively "giving them the finger". Indeed, Scotland's First Minister has reason to be particularly offended. Having been told that "<i>now is not the time and the reason I say that is because all our energies should be being put into the negotiations with the EU to make sure we get the right deal</i>", she leans that now <b>is</b> in fact the time to instead put a large part of our energies into a vote... just not the one that Holyrood has asked for.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75213077259800473452017-04-19T22:16:14.499+01:002017-04-19T22:16:14.499+01:00Proof of the pudding,
Maybe like Brexit for Camero...Proof of the pudding,<br />Maybe like Brexit for Cameron this is all about internal Tory politics? <br />Re UPC, techrights made me chuckle with his happy cheer for Another Final Nail in the Coffin. How many final nails can there be? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82727944501956161662017-04-19T18:16:05.089+01:002017-04-19T18:16:05.089+01:00Odd decision by Mrs May. I mean, what changed bet...Odd decision by Mrs May. I mean, what changed between triggering Article 50 (on 29 March) and yesterday? Certainly nothing relating to any of the "excuses" that she provided yesterday. Perhaps she just hadn't thought things through before now. If so, that hardly inspires confidence!<br /><br />On a more IP-related note, has the IPO revealed any details on when they now expect the UPC Agreement to be ratified? Seems that a delay of several months (at least) is inevitable.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-18303130527675309152017-04-18T20:28:06.337+01:002017-04-18T20:28:06.337+01:00Kant,
Parliament to meet for maybe only 7 days bef...Kant,<br />Parliament to meet for maybe only 7 days before 8th June due to holidays and local elections in May.<br /><br />There will be plenty of trawling over May's words as to whether Brexit negotiations are delayed, going on or are just not happening anyway at the moment. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-67979306776877131322017-04-18T19:10:37.121+01:002017-04-18T19:10:37.121+01:00Watch out for Mr Mooney et al declaring that the u...Watch out for Mr Mooney et al declaring that the upcoming general election has nothing to do whatsoever with British UPCA ratification and will not in any way have an impact on it. Will we even see some barristers' written opinon 'independently' confirming this? /irony offPlutonoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70790187327004594012017-04-18T16:00:20.592+01:002017-04-18T16:00:20.592+01:00Well said Kant - my thoughts exactlyWell said Kant - my thoughts exactlyAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-18562049746199039092017-04-18T12:15:59.080+01:002017-04-18T12:15:59.080+01:00Presumably, the fact that a general election has b...Presumably, the fact that a general election has been called will now prevent the ratification of the treaty until after June (if ever).Kantnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-67247268979345241902017-04-11T09:52:15.183+01:002017-04-11T09:52:15.183+01:00@Headache
What makes you think that there will be...@Headache<br /><br />What makes you think that there will be no more "fixes" pulled out of the bag to ensure that the UPC is used to an adequate extent? The examination policies applied by the EPO's management in recent years appears to have been custom-made to plump up the pool of potential cases. It is not hard to imagine a few more policies of a similar ilk emanating from the creative minds of that management...Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33559147901161290912017-04-10T14:20:44.284+01:002017-04-10T14:20:44.284+01:00Kluwer Patent Blog; new RoP UPC:
New blog post ab...<a href="http://kluwerpatentblog.com/2017/04/10/new-version-rules-procedure-unified-patent-court-available/" rel="nofollow">Kluwer Patent Blog; new RoP UPC</a>:<br /><br />New blog post about the UPC Rules of Procedure.<br />The new draft ‘is yet to come under scrutiny by the European Commission on the compatibility of the Rules of Procedure with Union law´...<br />Really, all allegations that the UPC is not a EU legal construction are difficult to believe when reading that the Preparatory Committee is running its provisional papers along the European Commission for approval.<br /><br />Yes, these people get paid for improving all they can before the start of the UPC, but they must feel like riding a dead horse. With the BrExit running, their work looks like it'll never be used...Headachenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-41902900739409658042017-04-08T20:48:23.610+01:002017-04-08T20:48:23.610+01:00Even in-house lawyers (not patent attorneys, but t...Even in-house lawyers (not patent attorneys, but the other kind, who can call themselves 'patent attorneys' for no sensible reason I can think of) are planning to risk their employers' assets by taking the unitary patent route.<br /><br />In regards to the 'assertion' "How numerous are likely to be CJEU referrals by the UPC anyway?", was the same question asked by Smythe et al when the SPC regulation was drafted?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4085039088495158282017-04-06T08:25:06.037+01:002017-04-06T08:25:06.037+01:00Quite frankly, the opinion of this author whose fi...Quite frankly, the opinion of this author whose firm is heavily invested in the UPC is as biased and thus irrelvant as that of the other UPC proponents. They are all in vain trying to cherrypick from the apparent mess something to suit their needs and further their agenda. Whether it's Tilmann, Mooney, Hoyng or now Mr Smyth. <br /><br />They start suble exercises of interpreting official statements e.g. by the government or even the CJEU (Opinion 1/09), giving them a meaning that was certainly never thought of nor intended. The technique is always the same and one is left to wonder whether these people, apparently lacking any meaningful level of creativity, do really think that they can still be taken seriously. <br /><br />An inevitable part of their story always is the remark "How numerous are likely to be CJEU referrals by the UPC anyway?" Quite frankly, as it has been pointed out elsewhere (bit.ly/2k0nOCV), in the end it may well be that CJEU involvement will not be as limited as now alleged. Of course, this allegation likewise serves the purpose of trying to paint the UPC picture that everything will be fine and coherent, but in reality it is not. The stage has already been set for allowing the CJEU to assume interpretation competence also with regard to interpreting material patent law, some unwary commentators have clearly said so, Mr Tilmann being amongst them. The main purpose of the 'compromise' on Articles 6 to 8 apparently was to hide this CJEU competence for later, until it can be 'activated'.<br /><br />But, of course, how would any UPC proponent ever be willing or able to just notice the facts and discuss on this basis, they rather prefer to build their own reality and sell this to others as facts.iPinnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48264150257110089902017-04-05T16:12:33.247+01:002017-04-05T16:12:33.247+01:00CIPA steers I the direction of its council, and is...CIPA steers I the direction of its council, and is unable to hear the shouts of 'iceberg' from those of its members who can see it, i.e. those with a true understanding of their client's interests and in-house patent attorneys.<br /><br />Ron, the steel was Scottish, but (from a more reliable source than your cathode ray tube TV):<br /><br />"The steel used in constructing the RMS Titanic was probably the best plain carbon ship plate available in the period of 1909 to 1911, but it would not be acceptable at the present time for any construction purposes and particularly not for ship construction. Whether a ship constructed of modern steel would have suffered as much damage as the Titanic in a similar accident seems problematic. Navigational aides exist now that did not exist in 1912; hence, icebergs would be sighted at a much greater distance, allowing more time for evasive action. If the Titanic had not collided with the iceberg, it could have had a career of more than 20 years as the Olympic had. It was built of similar steel, in the same shipyard, and from the same design. The only difference was a big iceberg. "Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80377818481226063982017-04-05T11:06:48.579+01:002017-04-05T11:06:48.579+01:00Further to proof of the pudding's post of 10:3...Further to proof of the pudding's post of 10:32, I also find it unfathomable quite why CIPA have lobbied so hard for the UPC since the Brexit referendum. They certainly haven't been representing the somewhat mixed opinions of the UK profession in this matter. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56027200547489235402017-04-05T10:25:59.169+01:002017-04-05T10:25:59.169+01:00Funnily enough, there was a programme on UK Terres...Funnily enough, there was a programme on UK Terrestrial TV a few days ago which produced evidence that, not only was the Titanic made of second-rate steel plate, but that it also set sail with an uncontrollable fire raging in one of its coal bunkers that had seriously weakened its structure.Ronnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-83164880761146323352017-04-05T10:22:55.425+01:002017-04-05T10:22:55.425+01:00@Anon 5 April, 09:32
"The problem, irrespecti...@Anon 5 April, 09:32<br />"<i>The problem, irrespective of Brexit, is that this is a lawyer-led white elephant</i>".<br /><br />Whilst I suspect that it may be correct to say that the UPC was started by lawyers, I am not 100% sure that they remain in the driving seat.<br /><br />UK private practice lawyers (other than suitably qualified patent attorneys) are unlikely to have rights of audience before the UPC post-Brexit... though no doubt there will be lobbying aimed at UK solicitors and barristers being granted such rights.<br /><br />Also, I have not met an "in-house" attorney yet who is a real fan of the UPC. Witness, for example, the position advocated by the IP Federation (ie don't ratify until we're sure how this can all work post-Brexit).<br /><br />I will concede that <b>some</b> UK patent attorneys are (as individuals) quite pro-UPC, but I have met many who are not... and many more who do not really have strong views either way. I will also concede that (for reasons that I cannot quite fathom), CIPA has been lobbying for the UK to press ahead with ratification. However, I have reason to believe that this is not why the project is going ahead.<br /><br />From what I have observed, the principal reason behind the Member States pressing ahead with the UPC (despite the hugely unwelcome extra dollop of uncertainty that this will bring for European industries) is the "political capitol" that has been invested in the project.<br /><br />From the perspective of the EU Member States, the UPC is a flagship for "enhanced cooperation". They need this to work so that there is an example of a new way to deal with the increasing difficulty of securing unanimous agreement on important EU projects.<br /><br />From the perspective of the UK, I suspect that pressing ahead was a way for Lucy to "save face", avoid having to answer awkward questions about the time and money spent on a project that turned into a lame duck, and avoid having to deal with the threat of the other Member States to "go it alone".<br /><br />When you look at it this way, it kind of makes sense. I mean, idiotic "white elephant" projects are far more often brought to life by politicians for reasons of vanity than they are by professionals who might actually know what they are doing.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-47129981558971620282017-04-05T09:32:30.819+01:002017-04-05T09:32:30.819+01:00"Dear UK lawyers, the reality is that Brexit ..."Dear UK lawyers, the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with. It is sad for you, but unavoidable and any contortions trying to be in with being in are in vain. "<br /><br />I believe this comment contains the problem with the UPC, but only points it out in respect of UK lawyers. The problem, irrespective of Brexit, is that this is a lawyer-led white elephant.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55872112593711022212017-04-05T08:37:59.350+01:002017-04-05T08:37:59.350+01:00"The other point is that national patent law ..."The other point is that national patent law will be unaffected, and no patentee is required to use the UPC, or seek a unitary patent."<br /><br />No, but any technical activity in the UK is within its jurisdiction to determine whether or not the activity is legal, and it will have to apply the jurisprudence of the CJEU, not the UKSC in so doing. It will have to power to compel compensation to be paid to another entity if not, following that law. So, in the languages of the media, "British businesses and individuals remain subject to jurisdiction of an EU court." Can't see this flying politically, once Percy the Plumber starts getting threats of UPC litigation in respect of allegedly infringing fixtures or spare parts ordered and supplied from China.BobTheBrexitnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4046403389695126362017-04-05T08:11:04.426+01:002017-04-05T08:11:04.426+01:00The UPC is new, big, fast, powerful and expensive ...The UPC is new, big, fast, powerful and expensive like the TitanicAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72749151083195018582017-04-05T08:10:25.508+01:002017-04-05T08:10:25.508+01:00@Anon 4 April, 16:37
Are you being serious? If so...@Anon 4 April, 16:37<br /><br />Are you being serious? If so, then your comments remind me of crime in a multi-story car park - just wrong on so many levels. (Credit to Tim Vine for that one.)<br /><br />Take a(nother) look at the CJEU's Opinion 1/09. An interesting paragraph of that Opinion is as follows.<br />"<i>It must be emphasised that the situation of the PC envisaged by the draft agreement would differ from that of the Benelux Court of Justice which was the subject of Case C 337/95 Parfums Christian Dior [1997] ECR I 6013, paragraphs 21 to 23. <b>Since the Benelux Court is a court common to a number of Member States, situated, consequently, within the judicial system of the European Union, its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union</b></i>".<br /><br />So let's get this straight. A mere "legal fiction" of the UPC being "a court common to a number of Member States" is not enough. Instead, the character of the court must be such that "its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union". For the UPC post-Brexit, the only phrase that springs to mind is "epic fail" when it comes to this criterion.<br /><br />And think again about Article 5(3) of the UPR. Are you really so sure that it will be that simple? Have you appreciated how the differing constitutional arrangements of the Participating Member States will lead to variations in the extent to which the provisions of the UPC Agreement are incorporated into national law? I thought not.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-16363410761160911322017-04-05T08:08:14.293+01:002017-04-05T08:08:14.293+01:00I always like to remark that according to Art. 1 t...I always like to remark that according to Art. 1 the UPC not only shall be a court common to EU Member States (only, of course), but also that it is subject to the same obligations under Union law as ANY national court of the Contracting Member States, which means that by ratifying this agreement the UK confirms in writing that ALL UK national courts shall be subject to EU law.<br /><br />I'm a robotnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-36063846230337697652017-04-04T21:02:06.957+01:002017-04-04T21:02:06.957+01:00"the UPC is an international court but it is ..."the UPC is an international court but it is an EU court, which is why it is under the CJEU. "<br /><br />It is "under" the CJEU in the same way as the English courts and UK Supreme Court are at present. Are you suggesting that the English Court are EU courts even when deciding on national law. Do you consider the Miller Art 50 judgement to be the work of an "EU" court. Seems a strange catogorisation to me.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60580590188321332032017-04-04T19:48:32.926+01:002017-04-04T19:48:32.926+01:00Reading all of this reminds me of the final scene ...Reading all of this reminds me of the final scene of "The Bridge On The River Kwai".<br /><br />"Madness......just madness!"<br /><br />The Brits have been painstakingly building this folly for many years and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening.<br /><br />The last thing anyone needs is for the train to leave the station and make its way on to the bridge....<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2273555238600952152017-04-04T18:44:56.261+01:002017-04-04T18:44:56.261+01:00Patentees in the Uk owuld only have the choice if ...Patentees in the Uk owuld only have the choice if the UK government gives it to them. Allowing one section of society to be under the jurisdiction of the EU seems contrary to the government position.<br /><br />Aside from that, not all patentees are UK citizens so the UK surely cannot allow non-UK-resident patentees the right to obtain UK property rights that are not subject to the jurisdiction of the UK courts?<br /><br />Nice try to claim the UPC is an international court but it is an EU court, which is why it is under the CJEU. We could try and get round many hurdles by creating 'international bodies' in this way, but I doubt it will wash. The EMA for example may be one such body we could do with not leaving.Anonymousnoreply@blogger.com