The IPKat is delighted to receive this paper from Prof. Dr. Winfried Tilmann of Hogan Lovells which suggests that it might be possible for the UK, post-Brexit, to nevertheless be involved in the Unitary Patent (European Patent with Unitary Effect or EPUE) and Unified Patent Court (UPC). Many have wondered whether this could be the case; few have come up with a plausible legal basis for such a scenario (given that the CJEU ruled the previous proposal for a European patent litigation system incompatible with the EU Treaties for reasons including the involvement of non-EU states). The IPKat will present the paper and hopes that our dear readers may provide their comments.
EPUE-Reg and UPCA after Brexit
The British voters have voted for a Brexit. What does that mean for the EPUE-Reg and for the UPC Agreement (UPCA)?
There is no immediate effect, since Art 50(2) EUC provides for a two-year period for agreeing on the details of an exit. During that period, the details of any UK participation in the patent package must be agreed upon for the time after the legal effect of the exit has taken place (legal exit).
What are the options for the EPUE-Reg and for the UPCA if a continuing participation of the UK in the patent package is desired?
EPUE-Reg and UPCA after Brexit
The British voters have voted for a Brexit. What does that mean for the EPUE-Reg and for the UPC Agreement (UPCA)?
There is no immediate effect, since Art 50(2) EUC provides for a two-year period for agreeing on the details of an exit. During that period, the details of any UK participation in the patent package must be agreed upon for the time after the legal effect of the exit has taken place (legal exit).
What are the options for the EPUE-Reg and for the UPCA if a continuing participation of the UK in the patent package is desired?
1. EPUE-Reg
In case the UK leaves the EU, not having found a solution for the EPUE-Reg, the UK participation in the EPUE-Reg would end automatically with the UK losing the status of an EU Member State (EU-MS).
However, since one of the two bases of the EPUE-Reg is Art 142 EPC [Merpel notes this is the European Patent Convention, and so independent of the EU and the UK's involvement in it] an agreement may be reached between the EPC member states being UPCA signatory states, including the UK, in the form of a Protocol to the UPCA agreeing that a unitary effect of an EPUE would be extended to the UK on the basis of Art 142 EPC. That agreement would be binding on the Participating Member States (PMS) and the UK on the basis of international law only. It would lead to two parallel unitary effects of the EPUE (1) in the participating member states of the EPUE-Reg (PMS) on the basis of the EPUE-Reg and (2) in the UK on the basis of the agreement pursuant to Art 142 EPC.
Union law would not definitely prohibit such internal agreement between EPC member states. The blocking effect of an EU competence used by the EU normally includes external agreements of the EU-MS on the same matter. But this is not the case, if the EU decides not to make use of its competence or even allow the external agreement by endorsing it. It could be envisaged that the endorsement would be included in the exit-agreement EU-UK. The unitary effect in UK would still be only a matter of international law. The endorsement is only needed for securing the competence of the contracting member states of the UPCA (CMS) to agree on that extension.
2. UPCA
a) Art 84 UPCA provides that only EU Member States (EU-MS) may ratify the UPCA. If the UK has ratified at the time of the legal exit, absent any change of the UPCA, the UK (or the other CMS, being the other party) may theoretically cancel the adherence of the UK to the UPCA pursuant to Art 62, 65, 67 of the Vienna Convention, because a fundamental circumstance has changed (Art 62 Vienna Convention).
b) What kind of change of the UPCA would admit an adherence of the UK to a modified UPCA after the legal exit?
(1) The CJEU, in its Opinion 1/09, has decided, that the UPCA may be concluded only if the referral procedure under Art 267 TFEU is not jeopardized. Pursuant to Art 21 UPCA and its referral to Art 267 TFEU the UPC is obliged to refer all questions on the construction of EU law applied by it to the CJEU. Therefore, the requirements of Art 267 TFEU are met to a full extent. It is true that under Art 267 TFEU only the courts of EU-MS are permitted to refer questions pursuant to Art 267 TFEU, but the UPC is a common court of EU-MS (Art 71 a Brussels Ia-Reg) and would not lose that character, if a non-EU-MS (UK) who has ratified the UPCA being an EU-MS would continue to participate in the UPCA after leaving the Union, because that state, in ratifying, had fully accepted Art 21 UPCA and Art 267 TFEU and is bound to accept the Union law as defined by the CJEU. A statement to that effect could be included in the agreement based on Art 142 UPCA and also be endorsed in the exit-agreement EU-UK.
(2) Therefore, Union law would allow a change of the UPCA permitting a CMS, who had been an EU-MS at the time of ratification, to remain as a member state of the UPCA (CMS). This change could be made by the Administrative Council of the UPC pursuant to Art 87 (2) UPCA, if the exit-agreement (having the legal status of Union law) would contain a parallel text. In that case, no ratification by the CMS would be necessary (see 3. a below).
3. Implemention
a) EPUE-Reg
The possibility of an extension of the unitary effect of an EPUE to the UK could be provided for by a Protocol of the Administrative Committee prepared by the Preparatory Committee. The competence of the Administrative Committee for that part of the proposed Protocol could be based not only on Art 142 EPC but also later on the exit-agreement UK-EU. If the Protocol were based (also) on the exit-agreement UK-EU, the competence of the Administrative Committee could be based on Art 87(2) UPCA, because the Protocol would bring the UPCA into line with Union law. In that case ratification by the CMS or by the UK would not be needed.
b) UPCA
The same applies for the part of the proposed agreement of the CMS according to which a CMS who, at the time of ratification, was an EU-MS but does not continue to be an EU-MS may stay within the UPCA. This change may be brought about by a Protocol to the UPCA based on Art 149a(1)(a) EPC and later on the exit-agreement UK-EU, in combination with Art 87(2) UPCA, because the Protocol would bring the UPCA into line with Union law. Ratification by the CMS and by the UK would not be needed.
4. The way forward (timetable)
a) The UK should use its present position as EU-MS and deposit its instrument of ratification of the UPCA as soon as possible. In that case the UPCA could enter into force well before the exit-agreement becomes operative.
b) After the entry into force of the UPCA, the Administrative Committee of the UPCA should amend Art 84 UPCA in saying that a CMS will not lose its contractual position if it leaves the EU.
c) The Administrative Committee should, at the same time, establish a Protocol containing an agreement of the EPC-MS providing for an extension of the unitary effect of an EPUE to the UK.
c) Both agreements should be endorsed in the exit-agreement EU-UK. With the exit-agreement becoming operative, the two agreements (b and c) would be covered by Union law (the exit-agreement being of such quality) thus providing the basis for a retroactive application of Art 87(2)) UPCA.
d) At the date when the exit-agreement becomes operative, the UK will stop being an EU-MS but its further adherence to the UPCA would be based on the amended Art 84 UPCA. The UK would be ready to receive the unitary effect of an EPUE on the basis of Art 142 EPC.
This Kat supposes there are two sets questions in response to this proposed route forward:
1) is this legally possible - would the CJEU endorse the legal basis and conformity with EU law?; and
2) is it politically achievable?
What do our readers think?
3. Implemention
a) EPUE-Reg
The possibility of an extension of the unitary effect of an EPUE to the UK could be provided for by a Protocol of the Administrative Committee prepared by the Preparatory Committee. The competence of the Administrative Committee for that part of the proposed Protocol could be based not only on Art 142 EPC but also later on the exit-agreement UK-EU. If the Protocol were based (also) on the exit-agreement UK-EU, the competence of the Administrative Committee could be based on Art 87(2) UPCA, because the Protocol would bring the UPCA into line with Union law. In that case ratification by the CMS or by the UK would not be needed.
b) UPCA
The same applies for the part of the proposed agreement of the CMS according to which a CMS who, at the time of ratification, was an EU-MS but does not continue to be an EU-MS may stay within the UPCA. This change may be brought about by a Protocol to the UPCA based on Art 149a(1)(a) EPC and later on the exit-agreement UK-EU, in combination with Art 87(2) UPCA, because the Protocol would bring the UPCA into line with Union law. Ratification by the CMS and by the UK would not be needed.
a) The UK should use its present position as EU-MS and deposit its instrument of ratification of the UPCA as soon as possible. In that case the UPCA could enter into force well before the exit-agreement becomes operative.
b) After the entry into force of the UPCA, the Administrative Committee of the UPCA should amend Art 84 UPCA in saying that a CMS will not lose its contractual position if it leaves the EU.
c) The Administrative Committee should, at the same time, establish a Protocol containing an agreement of the EPC-MS providing for an extension of the unitary effect of an EPUE to the UK.
c) Both agreements should be endorsed in the exit-agreement EU-UK. With the exit-agreement becoming operative, the two agreements (b and c) would be covered by Union law (the exit-agreement being of such quality) thus providing the basis for a retroactive application of Art 87(2)) UPCA.
d) At the date when the exit-agreement becomes operative, the UK will stop being an EU-MS but its further adherence to the UPCA would be based on the amended Art 84 UPCA. The UK would be ready to receive the unitary effect of an EPUE on the basis of Art 142 EPC.
1) is this legally possible - would the CJEU endorse the legal basis and conformity with EU law?; and
2) is it politically achievable?
What do our readers think?
A possible way for a non-EU UK to participate in the Unitary Patent and Unified Patent Court?
![A possible way for a non-EU UK to participate in the Unitary Patent and Unified Patent Court?]()
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But Art.142 EPC would tie the UK and the EUP countries together permanently, just like Switzerland/Liechtenstein, the only current use of Art.142. Drop your Liechtenstein grant, your Swiss grant goes with it. Would it make sense to tie the UK or the EUP to such an arrangement?
ReplyDeleteIf this was achievable it would be an excellent solution, avoid delaying the implementation and see the UK able to participate in the system.
ReplyDeleteClever, imaginative, politically unthinkable and never going to happen. Patents are absolutely at the back of the queue. Will be no airtime for this. Sorry everyone.
ReplyDeleteSelf-serving wishful thinking at best, given that Prof. Tilmann is "member of the UPC Rules of Procedure Drafting Committee and of the Expert Group for the UPC Preparatory Committee" as well as being part of a legal profession eager (to put it mildly) to start work in the UPC.
ReplyDeleteCharley
Interesting, and something, I gave some thought while thinking about the isle of Man and Curacao joining the UPCA and unitary patent while being outside the Union...
ReplyDelete-->I agree that the unitary patent can "easily" apply to the UK after the exit by means of the Exit protocol (which is a treaty). Note that EU regulations are "extended" to non-EU countries a lot. The Lugano convention is an "extension" of Brussels I, and there are also negotiations to extend to Norway and Iceland the Evidence and Service Regulation. Last but not least, the Swiss-EU bilateral agreements and the EEA agreement are examples of extensions of EU agreements. Also from an EPC-point of view there is no problem indeed.
-->However, the UPCA I am more concerned about. In giving its opinion 1/09 CJEU did not only say that referring questions to CJEU was a requirement, but also that the international organization in that then-proposed European Patent Litigation Agreement was a show-stopper: it stood in the middle of the cooperation between national courts and CJEU in applying EU law. In the Opinion the court followed to say that this was different for "a court common to different member states" like the Benelux Court of Justice, which was thus automatically "within the EU" legal order. It thus showed the way out that led to the UPCA. UK participation would jeopardise that cooperation again and the UPCA would not fall automatically again within the EU legal order. How could that be solved?
---->By making the UK an extension state of the UPCA (that requires a change). The court would thus legally be a "court common to EU member states", but it will have jurisdiction regarding EPs of and unitary patents with regards to "extension states". And there is no reason why in such a court no local divisions outside EU and why no UK judges would be allowed...
---->By making a minor change to the EU treaties stating that also common courts of EU member states in combination with former states (+EEA states) fall within the EU legal order
---->By stating in the exit agreement explicitly that the UPCA is to be regarded as a "common court of member states", possibly for which the EU member states bear the formal responsibility for misapplication of EU law. This comes close to your suggestion, but I am not sure it will be accepted...
A UPC without the UK might be opening a box of Pandora of new language-based arguments. It strengthens the position of IT and ES that there is too much emphasis on English in the Agreement; which will be the official language of only a single and small country, and thus "less important" than Spanish or Italian....
is it politically achievable?
ReplyDeleteNO WAY, either the Brexiters nor for the EU-minus-GB.
The existing UPC nay-sayers will without doubt scream at any attempt to accommodate the new situation.
No garlic-eating "judge" from beyond the Dover cliffs should ever be allowed to have jurisdiction over the newly "independent" nation.
The EU-minus-GB will have its hands full with plenty of other issues, and the UPC will be only one among many bargaining chips. And the Farage nation won't understand why the London elite is so keen on slipping this last one through before the drawbridge is finally raised.
Then there is the upcoming election which will mechanically delay whatever submission of the remaining statutory Instruments to Parliament. I understand that the PPI must still go through. If that happened, that would be tantamount to having the referendum results repudiated by the Commons in one way or another.
And if an English judge can issue an injunction for the EU-minus-GB, then why not the Eastern District of Texas?
Moreover, Scotland could organise her own referendum while the ROB (Rest of Britain) is still coming to grips with the new situation. Will there even be a United Kingdom left to invoke Art. 50 of the Lisbon Treaty?
The apocryphal Chinese curse "may you live in interesting times" is finally upon us.
It is amazing how imaginative some members of the legal profession, starting with Mr Tilmann, try to avoid the consequence of the Brexit when it comes to the UP/UPCA.
ReplyDeleteI fully support the anon/Charley of 20.39BST when he considers Mr Tillmann's position as self-serving wishful thinking at best. I have rarely seen such a pro domo statement.
The day Points 4,a) and 4,b) in the "way forward" will be implemented pigs will fly. Amending Art 84UPCA is a no go!
The same applies with point 4,d). Do you really think that the UPC is such a fundamental point that it will find its way in the Brexit agreement as it is wished here? Please come back on Earth.
What is superbly ignored here is Opinion 1/09. The UP and the UPCA is not open to non-member states of the EU. That is the end of any loop-hole for keeping the UK in the system be it before or after the actual Brexit (Art 50 Lisbon Treaty).
Anything else is not only wishful thinking but clear nonsense.
It is difficult to understand why "The IPKat is delighted to receive [such a] paper". I am disappointed wíth IPKat in view of this statement.
The UK can participate fully. They can have a Unitary Patent covering EU states and EP-nationals elsewhere.
ReplyDeleteTo be fair, a unitary patent will be little used by those industries where patents are key to their business. Only fools within the pharmaceutical industry, for example, will go the unitary route.
Interesting times have been on us for a while. Although, to be fair, most IP professionals probably haven't noticed the recent recession.
ReplyDeleteSee on a similar discussion http://kluwerpatentblog.com/2016/06/26/brexit-new-scenario-discussed-to-save-the-unitary-patent-system/ and see the comments in reply for further points of view.
ReplyDeleteThis proposal from Prof. Tilmann may be reflective of what is going wrong in th EU, and why the situation is now as it is. There was a democratic decision by the UK to leave the EU. It was narrow, it was not to everybody's taste (also not mine, to be clear) - but it was a democratic decision that the UK should distance itself from the EU. We have to respect this decision, or else we would jeopardise our democratic fundament.
ReplyDeleteNow advocating that the UK should nevertheless ratify an agreement which would connect it with the EU does not appear to be appropriate. It appears to be an attempt to undermine the result of the referendum.
As far as I remember, nobody ever made similar suggestions to enable the participation of other non-EU countries like, say, Norway or Switzerland. I thought there were good reasons for that (CJECU opinion 1/09). Suddenly, all this does not appear to be valid any longer? This does not sound convincing.
In my personal view, the UPC without the UK would be much less valuable. Therefore, the UPC should now be revised to reflect the new scenario. I fully understand the disappointment of all people who spent huge efforts to establish this agreement, but this is not a valid reason to disregard the outcome of a democratic referendum.
Perhaps those saying 1/09 CJEU said participation of non-EU members was a no-go, could read 1/09 CJEU.
ReplyDeleteDespite the fact that non-EU members were to be involved in the draft agreement on the European and Community Patents Court, no adverse comment was made on this point. The decision relates entirely to ensuring availability of preliminary rulings, infringement proceedings, and financial liability of participating states, which was solved by added chapters to the UPC Agreement.
It is possible, but without goodwill not probable, that the UK could remain in the UPC. If they don't ratify now, that possibility evaporates.
As other commentators have noted, even if the UPCA is an international treaty formally independent from EU law, in practice it has been drafted as a treaty open to EU member states only (see in particular Art. 1, second sentence in combination with Art. 2 (b) and (c) UPCA), and it was drafted this way most likely in order to avoid the issues raised by the CJEU opinion.
ReplyDeleteHence, although the UK could allow an extension of the unitary effect on its territory, I don't see how it could actively participate to the UPC after Brexit (which would mean, in essence, for the UK to accept the jurisdiction of a "foreign" court for unitary patents).
What is much more likely to happen is that people will realize that the UPCA needs amendments no matter whether they will try to accommodate the UK in the system or not. Here it must be recalled that the reason why the UP package ended up being a legal version of Frankenstein's monster was largely due to the UK: if we really have to re-open Pandora's box, I would rather hope that we get rid of the most unsavory bits of that compromise. For instance, the whole thing could be more neatly recast as a simple EU Regulation, as it was originally envisaged, and in the process get rid of much of the sloppy drafting of the UPCA. Oh, and the adjective "central" in "central division" should indicate once again that the division is located in one single place (don't particularly care where, but the current situation is rdiculous)...
Stop, stop, stop, all of you, please stop.
ReplyDeleteIt's over. I repeat, it's over. The conversations in the legal community over the course of the last few days, in which lawyers are desperately trying to put sticky tape on the house of cards to prevent it from falling down, are not going to work.
Any system has to be palatable to industry, whether telecoms, mechanical, automotive, pharma, or SME. Even before Brexit, the whole thing was looking a bit wobbly (and hence creative lawyers were licking their lips for working out ingenious ways in which the system could be gamed).
But now, forget it.
I wrote an article on this a few days ago: https://www.linkedin.com/pulse/why-leaving-uk-never-join-upc-joeri-beetz
ReplyDeleteThis is a poltical problem, not a legal one. Legal trickery is not going to solve it.
A quite interesting and imaginative intellectual exercise by Prof. Tilman, an exercise inspired by his restless efforts to promote the unitary patent system. But it seems to be far from reality. Leaving aside the objections derived from the ECJ's conditions in its opinion G 1/09 for a Court competent to decide on EU law, Mr Juncker and Mrs Merkel have made it quite clear yesterday that there will be no cherry picking for the UK and that negotiations on the relations EU - UK have to take place after implementing the BREXIT.
ReplyDeleteCongratulations IPKat!...19 Million page views.
ReplyDeleteThat last comment at 07:38 I found refreshing. The legal system of England is poles apart from that shared by the countries of the European mainland. Shrug off England and the EU is suddenly free to build a coherent and simple legal world, one that strikes the USA as alien but with which the rest of the world can relate.
ReplyDeleteEnglish Law, with its notions of fairness, is a strong basis all over the world for the precious "Rule of Law". What a tragedy then, that there will not now be trials of chemical cases (where the fact-finding procedures of English law are vital) in London in the courts of England. Until now, there has been huge admiration, throughout the world, for the way England does fact-finding in patent cases. It keeps litigants (relatively) honest.
Not surprising though, that the big Anglo-American law practices want to keep England in the UPC.
I think opinion on the mainland is now crystallising, that on balance the EU will be well rid of the English. All our soft power has been squandered.
The mind boggles as to how anyone could thing the UPC is one of the things the UK could seek to cherry pick.
ReplyDeleteSeriously?
Keep up the xenophobia Max.
ReplyDeleteA creative solution, which requires everyone to co-operate and trust one another from the word go.
ReplyDeleteIn the current climate, that is wishful thinking.
The UK will not ratify anything that will give jurisdiction on an important part of IP law to an EU body while it is negotiating to remove itself from jurisdiction of EU bodies. If it did so, it would have to be in the knowledge that that jurisdiction may return to the UK after two years. In the meantime, there would be the risk of British headlines about injunctions by brand new EU courts against UK small businesses or importers, which would play into isolationist hands, all the while the UK is trying to create a workable, amicable exit package. The UK will also not hand over its bargaining chips so easily. If it is a benefit to the EU that the UK participate in the new Package, then expect this to be a negotiating point between UK and rEU, not a done deal.
The UK's involvement in the Package is therefore likely to be deferred until the Brexit agreement is made, or until the political winds change. Therefore, the package also would likely be deferred.
As was made well above, the problems created by Brexit are not solely legal, but are also political, and the creative solution posed misses the political dimension.
Honestly, stop thinking about it.
ReplyDeleteJust because there might be some "legal theoretical" ways to "fix" it, it's never going to happen.
The "Eastern District of Texas" argument is good to kill the treaty for good. Why should IT, ES (or DE and FR) go for something like that? Iurisdiction outside it's own iurisdiction?!
EMA and other institutions are moving out of London and the UPC people dream of opening a new EU institution in London or having English judges deciding on cases under EU law?!
Even minor points are big for some countries: Why should English be the sole language of the procedings? Only Ireland would be an English speaking member. Spain and Italy won't like it nor will France or Germany...
Some people were paid very well for the last few years and now cling to their jobs and "mission".
So everybody go on and do something "useful".
I am very sorry, but Prof. Tilmann cannot be taken seriously, his "expert" statements usually do nothing more than serving his very own interests, as some commentators have quite rightly indicated.
ReplyDeleteReaders may wish to have a look at Prof. Tilmann's past writings on opinion 1/09, some are freely avalable on the internet (e. g. EUCJ - Opinion 01/09 - Analysis and Consequences, www.eplawpatentblog.com/eplaw/2011/04/eucj-opinion-0109-analysis-and-consequences.html). Studying paragraphs 14, 15, 19, 22, 23 of said paper is very enlightening, also Prof. Tilmann's conclusions (paras. 24 and 25):
"24. This leads me to the following result of my Analysis: If the Agreement would be
concluded by EU Member States only and if the two "sanctions" would be expressly regulated in the Agreement, the Court would not have objections against the centralised Patent Court (PC).
25. Therefore, I advocate that the Opinion of the EUCJ be adopted to the fullest
extent and accordingly that the draft Agreement be amended in the following respects:
a) restricting the membership of the Agreement to the EU Member States willing to participate in the Enhanced Cooperation on the Unitary Patent and (...)"
So is it only my understanding that Prof. Tilmann was in fact saying in his analysis of opinion 1/09 that participation in the UPCA should be limited to EU member states only?
To the informed observer, Prof. Tilmann's remarkable flexibilty in his positions on the UP/UPC issues is nothing new, he has repeatedly morphed in line with what was required to realize the project:
In the context of former Art. 6 to 8 of the Patent Regulation, some may remember that Prof. Tilmann first argued that the articles could not be removed without putting at risk Art. 118(1) TFEU as the Regulation's legal basis. Later, after the European Council had demanded the removal of these articles, he suddenly advocated for the exact opposite of his initial position, namely that a removal was perfectly legal and would not endanger the legal basis at all.
Some may also recollect that he held the position that the opt-out of an eligible patent from the jurisdiction of the UPC would leave the application of the UPCA unaffected, i. e. a national court dealing with an opted-out patent would have to apply the UPCA in the national proceedings. This even led the Preparatory Committee to issue a statement that it did not share this position (www.unified-patent-court.org/news/interpretative-note-%E2%80%93-consequences-application-article-83-upca).
Therefore, Prof. Tilmann's statements should certainly be taken with nothing but a grain of salt.
There are many tragedies connected with Brexit (and the debate that preceded the vote), the likely demise of the UPC being one of the lesser ones. Nevertheless, one still has to feel for those who have put their heart and soul into bringing the UPC into being. It is not hard to understand that they do not want to see all of that time, effort, energy, cost and resources amounting to nothing more than a hill of beans. I think that I would feel the same in their shoes.
ReplyDeleteIf Brexit does become a reality, then we will have gone backwards with regard to the goal of simplifying and reducing the costs of securing and/or enforcing patents across multiple European countries. However, that does not mean that we should get too disheartened. I'm sure that the UPC did not look all that appealing to SMEs. Further, the glaring (loop)holes in the legislation leave a lot to be desired, and would / will create a huge amount of uncertainty. Thus, we should perhaps not spend too much time mourning (or making what are likely to end up being futile attempts to prevent) the UPC's imminent demise, and instead focus our creative energies on constructing something new that could end up being better.
I shall provide the first idea: how about a "mutual recognition" system for court judgements? This could perhaps involve conducting full litigation in one jurisdiction and then having only "litigation light" in the jurisdictions where the judgement is to be recognised (e.g. where the fact-finding and expert evidence is taken from the first judgement, but where differences of fact and national law in the jurisdiction of the other court(s) are taken into account).
Such a system might not be optimal. However, combined with further efforts to reduce the cost of validation (e.g. based upon efforts made with machine translations and/or rules taken from the UPC regarding provision of a translation upon enforcement) it might represent a compromise with which we could all live for many years to come. If you cast your eyes back to what happened with the CPC, you will see that the EPC represents a very similar kind of compromise.
Meldrew, my point was based on point 80 and 82 of the Opinion. In point 80, it is made clear that an international court is not possible, because it deprive those courts of their task, as ‘ordinary’ courts within the European Union legal order, to implement European Union law and, thereby, of the power provided for in Article 267 TFEU, or, as the case may be, the obligation, to refer questions for a preliminary ruling in the field concerned.
ReplyDeleteThe solution is presented in point 82, which more or less says that if the international court would be come an 'ordinary' court as mentioned above (but shared by several member states), that that would be ok, as it would be part of the EU legal order. I find it hard to imagine how a court of several member states + 1 former member is (in the long run; I am not talking transitionary measures) to be considered an 'ordinary court' within the "EU legal order". It is already a stretch to consider Benelux/UPC as such, but I'd guess we will not know before it really comes before CJEU...
It is as simple as that: The UK citizens can't have the same rights as the EU ex ES citizens without having the same obligations and vice versa.
ReplyDeleteApart thereof I do not find the insinuations in paragraph 2 of MaxDrei's comment helpful.
It says something about this referendum that even the comments below an entirely theoretical post about patent law are bitter and recrimination-filled.
ReplyDeleteThe past week has been very, very depressing. This excellent piece of straw-grabbing is of a piece with it.
In the end, the best we can hope for is that somehow Brexit is avoided. For that to happen the negative consequences of Brexit need to come thick and fast enough that people's minds are changed before Art. 50 is invoked and it becomes basically unavoidable.
Can we stop using the term 'Brexit'. Britain is not a country.
ReplyDeleteJust had a flick through the UPCA and it strikes me as rather clear that amending the UPCA to enable a Non-MS-UK to be part of the UPC would be anything but a simple task. For example:
ReplyDeleteArt. 1: ..."The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to --> the same obligations under Union law as any national court of the Contracting Member State <--- " (emphasis added).
Art. 5: Contractual liability of the court is largely governed by EU regulations
Art. 23: Reference to Art. 258, 259 and 260 TFEU
Art. 31: International jurisdiction to be established in accordance with Regulation 1215/2015 or the Lugano convention
Also, I note that whether or not the UPC will go live as planned in 2017 not only depends on whether the UK ratifies, but also on France's and Germany's ratification. Why should those two burden the already complicated Brexit-negotiations with additional issues and potentially give the UK extra leverage?
Gilman
ReplyDeletethe bitter comments and threats of recrimination are coming from the 'remain' supporters, the EU institution and its leader and inhabitants.
In response to such anti-British xenophobia, you pray for a democratic decision to be reversed.
Such perverse logic is unfortunately prevalent this week.
The best way to make patenting cheaper in Europe would be to restict the annual fees.
ReplyDeleteThis could easily be decided by the council for the EPO, or countries could decide for themselves to follow the US or NZ and only collect fees three times during the life of a patent.
But that would cost money for the local PTOs, so it's highly unlikely that such an approach would be taken.
In comparison to the annual fees translation costs are not worth mentioning, but a good translation actually helps people not fluent in English (and/or German and/or French) to understand what is disclosed and claimed.
Professor Tilmann's paper is certainly interesting and he may (or may not) be correct in his proposition that the UK can be part of the UP and UPC.
ReplyDeleteHowever, as already stated, even if this could happen it should not happen.
I suspect that even staunch supporters of Remain (including myself) would agree that a problem with the EU is that it has (by stealth?) over the years moved from an economic union towards a political union. Consequently I assume that many Remainers object to laws originating from the EU Commission having effect in the UK and even they would agree that we are perfectly capable of making our own laws in the UK and don't need the EU to do it for us.
Since it is the courts who enforce the law and since the UP and UPC dictate which courts have jurisdiction it would be diametrically opposed to the spirit of the Referendum result to give courts in mainland EU countries jurisdiction over patent matters in the UK.
However much we as a profession (both in the UK and the rest of the EU) would like the UP/C to be effective in the UK, we should face up to the fact that it shouldn't happen.
We're out get over it. Devote your considerable intellects to making a success of our country.
ReplyDeleteKeep calm
ReplyDeleteamend art 7(2) ("London" -> "Milan")
and
carry on
Before even bothering to try to wrap my mind around the legal complexities involved here, I'll just say something: it is politically impossible. No British Parliament is going to ratify yet another European agreement, in the current mayhem, with MPs throwing things at each other and both parties effectively leaderless. And even when they regain some appearance of calm (if they ever do), they'll have to deal with a lot many far more pressing concerns than the UPCA: not just trade, but also the millions of EU citizens in Britain and Britain citizens in the EU, their access to benefits and healthcare, and their pensions.
ReplyDeleteNot to mention the fact that this vote has whetted the appetite of quite a few other populists across the continent who dream to wreck the whole European project.
So, and I say this as somebody who has himself invested also quite a lot of time and effort in preparing for the UPC: Forget it. It's over. This parrot is dead. It's an ex-parrot. I hope that, some time in the future, maybe in less than yet another forty years, there'll be a unified European (or EU) patent system. Maybe even, without the Cameron team's fear of the CJEU, it will have a simpler, more rational legal structure than the UPC came to have. But for the moment, I'll be happy if the EU still exists by 2020.
Almost too easy!
ReplyDeleteWhy not simply find or make another place called “London” within the remaining EU Member States?
Mind you, there are already seven or eight place named “London” around this planet (most of them in the US) – unfortunately, none of them would qualify.
Thus, renaming would be the easiest option.
For example, the city of “Chemnitz” in DE was renamed to “Karl-Marx-Stadt” and then back to “Chemnitz”.
UA renamed and is renaming hundreds of towns.
Even GB has, in response to fallout, renamed a lovely place by the sea in the North…
So, which place wants to be renamed to “London”?
Michael, “shouldn’t happen”? I accept that it won’t happen without a lot of changes and compromise, but I think we must be careful not to draw too many conclusions regarding the “spirit” of the referendum result –especially since the UK is inevitably going to end up with some sort of agreement with the EU (be it EEA or some newly made up acronym).
ReplyDeleteThe 52% who voted Leave did so for a host of different reasons, none of which related to IP rights. I would find it hard to believe that even the most ardent Brexitter would have too much of an issue regarding the concept of pan-European IP rights. That said, as pointed out above, the UK and the EU have much bigger fish to fry that worrying about IP, so while I am hopeful for a sensible solution, I am not expecting one any time soon.
(Hi, by the way)
I agree with Simon Taor
ReplyDeleteIt should happen if its possible, though it may be an unfortunate distance down the UK and EU's list of priorities.
I never expected to quote Boris Johnson but I'm going to:
"There will still be intense and intensifying European cooperation and partnership in a huge number of fields: the arts, the sciences, the universities, and on improving the environment"
I think even most brexiters accept that to some degree, and accept that there are some areas where we should abide by common international rules. Where they may disagree with remainers is in relation to extent to which that it is done.
Patent law is an area where that UK has already decided to go for an international approach. If the UK wanted to make its own patent laws it would need to leave the EPOrg/EPC. It makes sense for patent enforcement to also be international, hence an earlier attempt to do this (the EPLA) which had nothing to do with the EU. If the EPLA was still on the table I don't expect that many people would suggest that it should be abandoned because of the referendum result, and the UPCA is not so different conceptually (even if it is legally).
The suggestion above that UK ratification would cause a big fuss domestically seem far-fetched to me. Sadly patent law is rarely that newsworthy let alone the mechanism by which it is delivered.
I'm also unconvinced by the notion that: "advocating that the UK should nevertheless ratify an agreement which would connect it with the EU does not appear to be appropriate"
Whilst the UK remains in the EU there will be plenty of new EU regulations on which UK approval will be sought, and can take effect in the UK. A situation in which we vote against or veto every new law for X number of years into the future seems untenable to me. If the UK does continue to vote through EU laws then ratifying an intergovernmental agreement on the basis that it is possible to amend it down line to work post-Brexit seems uncontroversial.
The other European London is roughly half way between Châlon-sur-Saône and Lons-le-Saunier.
ReplyDeleteHow interesting - I asked for some similar input over at the US blog Patently-O and only received a short "blow-off" from MaxDrei.
ReplyDeleteLooks like this is FAR more complicated than I was led to believe.
It is highly irresponsible and opportunistic to come up with such a unrealistic proposal. This once again amounts to pure lobbyism from the patent profession. The whole system is moreover not worth saving it. It's whole architecture is full of deficiencies and the system is intrinsically unattractive for SMEs contrary to what is propagated by the Commission and the EPO.
ReplyDeleteIt might be worthwhile quoting from the Commons debate on the Draft Patents Order 2016 on 1 March 2016, where also the consequences of a vote pro "Brexit" for British UPCA membership were discussed:
ReplyDeleteKevin Brennan: “There was reference in the Library briefing to a blog from Bristows, the starting point of which is that it will not be possible for a non-EU member state to take part in the proposed unified patent court regime. I presume that, if that is the case, we would not be able to apply to be part of it, and British business and UK plc would lose the benefit of being able to register a single patent.”
The government answer was pretty clear:
Edward Vaizey: “I am grateful to the hon. Gentleman for his clarification on that point. I think that that was sort of what I was saying: clearly, were we to leave the European Union, we would no longer be members of the unified patent court. It would then be a matter for the UK Government to ask the European Union whether we could be a member, if we thought that was a good thing. I suspect the European Union would have something to say about that. For people whose lives are dominated by thoughts of having a European patent, it would be a bad thing if we were not a member of the European Union. I hope that that is clear.”
To me, this sounds pretty much like there will be no UPCA ratification. Of course, a different government might take a different approach on this. But for the time being, said statement stands.
Thanks mo.saic. The transcript is interesting to read, but I don't come to the same conclusion as you at all.
ReplyDeleteMr Vaizey says that in case of Brexit we would need the EU's consent to stay in the UPC and that that might not happen. He gives no implication that the current UK government does not want to be part of the system in those circumstances, only that it will be a matter for the future Government.
I think the part of the debate that precedes this section is harder to interpret
Viaizey:"I have something that Brexit Ministers cannot see—a brief about the impact of the referendum. It says absolutely nothing, really, so I do not know what people are getting so worked up about. The briefing seems to me to be completely meaningless, so let me busk it. I do not want to get into trouble with the Mayor of London or anyone else, but if we left Europe as a result of the referendum, I suspect it would be a decision for the UK Government whether they wanted to rejoin the European patent court. Of course, we would have to rely on our European partners to decide whether the UK could be a member.
Mr Ronnie Campbell (Blyth Valley) (Lab): They will
Mr Vaizey: I hear from the Opposition Benches that the deal has already been done, but I will leave it up to hon. Members to decide on the validity of that remark
The then Mayor of London and Ronnie Campbell were both part of the Vote Leave coalition though it now looks like neither of them will have much influence on the government's decisions.
I hear now that when the countries of Eastern Europe (Poland et al) joined the EU, Germany and France put in place measures to stop their populations migrating to Germany and France to do all the jobs that the locals could not or would not do, but the UK Government did not, for the very good reason that the UK Government and its ex-Public School advisers thought that these skilled and trained and hard-working people were essential to keep them in the manner to which they had long been accustomed.
ReplyDeleteHowever, the economic research unit of the IMF has just published a Paper that declares that globalisation and neo-liberal economics does more harm than good. Because it destroys society. In that, it agrees with the verdict of 52% of those who voted in the Referendum. The elimination of all restraints on the free international movement of capital and labour is what Globalisation is all about, and the EU too. It allows the rich to get richer and condemns to poor to get poorer. No wonder 52% voted against it.
Those who are still seeking to remove restraints to the Single Market are out of touch with a majority of the voters and the IMF researchers.
I'm optimistic. I think neo-liberal economics has had its day. I look forward to gradual economic reforms at EU level, and the UK staying an EU Member, nominally. For the indefinite future, we shall see an "empty chair" for whoever is the UK delegate at any particular EU Meeting. So what's new?
Most amusing is the correspondent who writes of a "deal" between England and the EU. A "deal" suggests that both sides have bargaining chips. As far as I can see though, England has none. Anybody who thinks it does is deluding himself. The permanent empty chair will function as a standing reminder to the remaining 27 of the need to reach a fair, pragmatic and efficient agreement. This above all is what the EU needs. Bravo!
You may be interested in this speech, delivered yesterday:
ReplyDelete"Baroness Neville-Rolfe addresses the British group of the Union of European Practitioners in Intellectual Property":
https://www.gov.uk/government/speeches/national-and-international-level-concerns-and-developments-regarding-the-ip-landscape
"I know that many of you will be particularly concerned about the potential implications of the Referendum result for the Unitary Patent and the Unified Patent Court. Again, I am afraid that there is not much I can say at this stage. As you will know, we will have a new Prime Minister in early September who will need to take key decisions on our overall approach to negotiations on trade with the EU."
Anonymous at 14:42,
ReplyDeleteDo you have a link to this "However, the economic research unit of the IMF has just published a Paper that declares that globalisation and neo-liberal economics does more harm than good."...?
In answer to The Pigs, economics is not my profession: I just read a newspaper online. The Paper published by the IMF research dept was downloadable via a Link. I failed to save the Link.
ReplyDeleteThe Paper concludes that the negative effects of free movement are serious, in that they are not short-lived but instead are long-lasting enough to affect generations of people. Until now economists have not taken these downside consequences into account, because they haven't been able to measure them, to ascribe numbers to them.
I think that is because, until now, they have not bothered to find a way to measure them. perhaps they will now. Better late than never.
Germany and France imposed a 7 year feeeze on Poles wanting to work in their countries, after Poland acceded to the EU. Did the UK Civil Service think of doing that? Yes! Did the UK Government do it? No! I suppose it thought that England could do with all the lean and fit, trained and qualified, hard-working employees from wherever it could find them. And straightaway too.
At the time, (in 2004) most other MS thought the UK government's decision to allow free movement unhindered from 1 April 2004 was a mistake. France, Germany etc all said that their communities were not ready to cope. Both the UK and Ireland applied it from the start -remember when the Irish economy was a tiger before the EU had to bail it out as part of their own second referendum deal? In 2008, Ireland rejected the Lisbon Treaty (not quite the same) and agreed to vote again.It took more than a year for Ireland to vote again and when it did it was in the heart of a recession and said yes.
ReplyDeleteIreland was also hard hit by the immediate application of free movement from the 2004 accession MS but many left again when the Irish economy fell. As did many Irish.However, there were always subtle differences, in that Ireland is a Catholic country and its churches got a shot in the arm from the migration of Poles. Plus the Irish middle class a long time ago made the Irish language part of the legal order and learning Irish part of the curriculum in the better schools and a passport to better jobs (as in it is a requirement). This acts as a sort of legitimate barrier to integration or employment in better jobs. In other words, they can ask that a job applicant have Irish although they never use it as a language.
Re MaxDrei, privately but it is not what the politicians are saying -many French, and other nationalities such as the Danes, the Swedes want the UK to stay. Above all so do the Greeks (desperately in the case of the latter and they have long memories). As no one wants an EU dominated by one particular MS. In my time working within the circles of the EU, even now there was only ever opprobrium reserved for one MS and it was not ever the British. In fact, despite what on is led to believe in its general culture, the British did not indulge in that (gentillesse of the victor).
ReplyDeleteOK, since that last comment mentions my name, I'll have another pop.
ReplyDeleteJust as the USA supposes that, in time, the rest of the world must surely come round to the American view, so Germany supposes that, given time, the rest of the EU must surely come round to the German view. The tragedy of the BREXIT is that the only EU MS with the capacity to disabuse Germany of its misapprehensions is the UK.
Consider the Euro. Imposed on Germany by France. Never was there a better example of the Law of Unintended Consequences. But if the UK had been in there scrapping, the bonkers Euro would never have seen the light of day.
With no Euro, the DM would have been twice as high, and German goods twice as expensive. Instead of German wines selling all round the world like hot cakes, the world would instead have been buying quality wines from Spain, Italy and Greece at much more favourable prices. Skilled workers in those countries would still be there, instead of flocking to Germany just to get a job. Instead of unemployment being 50% in the Southern States and zero in Germany, it would have been much more evenly distributed throughout the Union.
Does any German politician tell this to the electorate in Germany. Of course not. Instead, they let Germans think they are the only hard-working people in Europe.
Here is a link to an item in a British newspaper that reminds us how fragile is the link these days, between the facts and how people vote.
Germany craves UK engagement, if only to bring French head in the clouds unworldliness down to Earth. Has anybody noticed though, how similar Theresa May is to Angela Merkel. Both daughters of vicars. Both stay silent until they are obliged to speak. Being an optimist, I wonder whether those two, after September, can stitch together something sensible.
https://www.theguardian.com/media/2016/jul/03/facebook-bubble-brexit-filter
I cannot help but notice that MaxDrei starts (as usual) in error...
ReplyDelete"Just as the USA supposes that, in time, the rest of the world must surely come round to the American view"
That is NOT what is "supposed in the USA."
The "ugly American" syndrome is NOT that we think that the rest of the world must surely come round, it is EITHER that we (the royal we) just DON"T CARE that the rest of the world 'must come round,' OR we presume that the rest of the world has already come round, so that any 'caring' is moot (with the dismissive attitude and opposite of one of concern for ROW).
The "ugly American" really does not give on whit whether or not "you all" come around - "we are the best" and "we will continue to be the best" whether you bother to "come round" or not. If you don't, "meh, so what?"
As to the rest of your post concerning internecine "politics," that speaks AGAINST the view of a "one Europe" far more than the exit vote of the UK. I do have to wonder though if you recognize that....