European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting

Last time the AmeriKat wrote about the
Competitiveness Council and the UPC
she was a mere kitten
It was November 2011.  The AmeriKat was spending her post-trial downtime reporting on the pending unitary patent proposals and the frenetic activity at the Competitiveness Council (see posts here).  Five years later, the UPC looked like it was ready to happen. Then Brexit.  And now, with a sense of déjà vu, the Competitiveness Council is back.  Tomorrow at around 2:30PM CET, the Competitiveness Council will be discussing, as AOB, the unitary patent and UPC (and also the review of the SPC system - for those who are less in love with the UPC).  It looks to be a public session so should be webcast here, with a press conference to follow here.  The background brief published yesterday states that:
"The Council will take note of a report on the progress made towards setting up the unified patent system and the situation concerning ratification of the Unified Patent Court agreement." 
The report from the Presidency to the Council dated 19 September 2016 provides a succinct summary on the state of play of the unitary patent and UPC.  The key section can be found in the Annex to the report which was prepared by the Chairs of the Select Committee of the Administrative council of the EPO and of the UPC Preparatory Committee.  The Annex states:
"According to the official timetable of the Committee the Court could be operational in early 2017. This was based on the assumption that the required ratifications where received during the fall of 2016.  
The outcome of the UK referendum has had consequences on the UK ratification process. The time-plan, therefore may have to be revisited.  
It is highly desirable to keep any delay of the entry into force of the system to a minimum in order to provide the business community with the clarity and the swift entry into operation of the new patent system they require."  
In advance of the tomorrow's meeting, numerous organizations have written to the Council as follows:
  • Letter from Business Europe - click here
  • Letter from UJUB - click here
  • Letter sent by Michel Guilbaud (DG MEDEF) to Philippe Léglise-Costa, Secretary General of SGAE  - click here
  • Letter by several companies (including Air Liquide, Boehringer Ingelheim, Bayer, Audi, Bosch, SAP and VW) to Mr Kris Peeters (Deputy Prime Minister, Belgium) - click here  
A theme that emerges in the letters is that (i) politicians need to find a way to get the system up and running and, with respect of some of the communications, (ii) politicians need to find a way in which to retain the UK in the system "that remains sustainable even after the Brexit" (to quote BusinessEurope).

The letter to Deputy Prime Minister Peeters states:
"In the wake of the political unrest seen in Europe in the summer, we find it timely to give a clear message to responsible politicians that we, the signing companies and industry associations, welcome the new patent system and urge that it should enter into force as planned, without delay. 
The attractiveness of the system would increase with a long-term participation of the United Kingdom. Therefore we also urge that solutions for such inclusiveness are considered."
The letter from MEDEF states:
"Pour les entreprises, l'attractivité du système serait accrue si la participation du Royaume-Uni pouvait être assurée sur le long terme et ce point devrait faire partie des solutions recherchées."
BusinessEurope's letter continues:
"Member States should make all possible efforts to bring the Unitary Patent package into life in 2017 as planned and to immediately start working on any necessary changes or additions to the legislative framework."
The German Bar Association's recent position paper took a harder line stating that "a quick decision of the UK is needed" on whether it will ratify the UPC Agreement with the view that if there is no quick ratification, then "an alternative solution should be found to allow the court system to start its work as planned".

The IPKat recently wrote on the legal opinion from Richard Gordon QC and Tom Pascoe of Brick Court on the legal feasibility of the UK's post-Brexit UPC participation (see here).  Legal feasibility is one hurdle, but the higher one in this landscape is politics.  Will the political hurdle of the UK's participation in the UPC post-Brexit be lowered in light of these comments? In a political environment where Prime Minister May is applauded for her "under the radar" approach, it seems unlikely to Merpel that any noise, no matter how positive, from European industry will make the UPC politically palatable to the current UK regime, at least publicly.

Against this background, the AmeriKat's words in a May 2012 post on the timing of the UPC seem oddly fitting now:  
"The AmeriKat cannot say whether the hands on the unitary patent clock that are ticking away as she types are counting down to an expected implementation of the patent proposals that have preoccupied the patent community for the past year [over 40 years] or to yet another legislative death when the proposals for the Utopian ideal of a unified European patent system fail to bring fruit."
The countdown has seemingly begun again, but the stakes seem to be even higher.   The IPKat will be back tomorrow to report on the Competitiveness Council's session tomorrow and future debates on this topic.
European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting Reviewed by Annsley Merelle Ward on Wednesday, September 28, 2016 Rating: 5


  1. And further approving comments have been filed by a group of pharmaceutical companies and associations on the same lines.

    The U.K. is wanted, but for how long?

  2. Finally, people seem to be addressing the elephant in the room that so far seems to have been almost completely ignored by all interested parties including the EPO, CIPA, and big business: regardless of the pros and cons the current political reality in the UK is that the government will not sign the UK up to any system that requires the acceptance of the supremacy of EU law over UK law. The sooner this is accepted the better. Then people can start working on the practical reality of the situation, no matter how much they dislike that reality.

  3. Anonymous

    I don't know whether you've noticed: nobody seems to know what the political realities are.

    So far, the fat lady has not sung - and the thin lady is simply saying Brexit means Brexit and telling the three Brexiteers to keep schtum.

    The question of who can trigger Article 50 is a live issue before the UK courts.

    Uncertainty reigns and chaos beckons.

  4. @anonymous

    Fine, but here it is not supremacy of EU law. It is supremacy of an international agreement over national law, which is quite widely accepted.

    Any international agreement, be it on free trade or on the privileges of diplomats, usually has supremacy over national law.

    You may well be right on the current political reality, but it is besides the point.

    1. Anon 1002,
      It is not just any international agreement. It is signing up to an agreement, the rules of which are outwith your control. If the UK does leave the EU, eventually, it will effectively be an observer who recognises and implements the EU laws. That would place it in the position of EPC validation states such as Morocco but still having to participate as a court. That isn't run of the mill.

  5. Legally speaking, it is absolutely impossible for a non-EU UK to stay in the UPCA (see e.g. art. 1), unless the agreement is amended with an unanimous vote (art. 87.3).

    Since the UPCA has been already signed by 26 EU States and ratified by 11 States, I think that the UPCA will never enter into force, unless of course the UK decides to remain.

  6. In response to the comment of 10:02.

    This is from Counsel's opinion on the UK joining the UPC:

    "The Unitary Patent Court is required to “apply Union law in its entirety and … respect its primacy” (Article 20). Union law must therefore be applied in preference to the other sources of law mentioned in Article 24."

    Article 24 specifies national law as an other source of law. That is, the UPCA explicitly requires acceptance of the supremacy of EU law over UK law. The current government may not be pressing full-steam ahead with Brexit at the moment but they certainly aren't going to ratify any agreement, international or otherwise, that requires this.

  7. I still am curious to read how this article might be circumvented...and this is only the first one!


    Unified Patent Court

    A Unified Patent Court for the settlement of disputes relating to European patents and European patents with [EU] unitary effect is hereby established.

    The Unified Patent Court shall be a court common to the Contracting [EU] Member States and thus subject to the same obligations under Union law as any national court of the Contracting [EU] Member States.

  8. That all firms having been heavily involved in the preparations of the UPC want it to come alive is understandable, be it only because of the time and efforts invested in it. That their might not be a return on investment is bitter for all of those them. But c’est la vie.

    The letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry. Did you expect that Air Liquide would be against the UPC?

    On the other hand, we were always told that the UPC is primarily there for the benefit of the SMEs.

    I do not see any federation of SMEs, but the French CGPME having participated in such a plea. The CGPME being one among the plenty members of the UJUB, even if it had a restrictive opinion, it would be overthrown by all the other members.

    I get the feeling that lots of people have lost track of the political reality. How can a sensible person advocate immediate ratification by the UK of the UPC Agreement when the terms of the Brexit are not even known? There might be ways for UK to continue its participation, but this means accepting EU law. I dare think what the EuCJ will have to say if UK participates to the UPC after Brexit and does not fully accept EU law supremacy. But then why the Brexit?

    Why on earth push for something which nobody knows how it will end up? That UK participation would be good is certain, but as somebody in charge in the UK said Brexit means Brexit.

    It is clear that if the UPC does not enter into force because of the lacking ratification of the UK, it will be delayed for a while. And then the can of worms will be opened again. But that is a reality which is tangible and which should be accepted.

    Whether we like it or not, it is time to look at reality and not hope for something which has been lost.

  9. "Any international agreement, be it on free trade or on the privileges of diplomats, usually has supremacy over national law."

    That's the problem with the UPC, it is not counter-balanced by an elected parliament, such as the European Parliament.

    It is an undemocratic monster.

    If the UK is out, the bare minimum would be to reintroduce art6 and art8.

  10. Of course, a solution would be for the UK to enact legislation to the effect that any judgement of the UPC in respect of an EP patent for which there is a GB part to be automatically enforceable in the UK. Maybe not so good for UK litigators but good for industry.

  11. Since the author is keeping quite on this: "The German Bar Association's recent position paper" was authored under the chairmanship of Prof. Tilmann who is presiding over the relevant sub-committee. For obvious reasons, this is not irrelevant and should be mentioned, at least if an objective information of the readers was intended.

  12. To be fully objective, it should be stated as well that Prof. Tilmann is as well uttering a pro-domo plea as he has been heavily involved in the launching of the UPC. That the German Bar Association position paper reflects the position of its chairman is not a surprise.

    In German he can be qualified as "Wendehals", i.e. flexible neck.

    In a first paper analysing Opinion 1/09 of the EuCJ, he was most adamant that the UPC was only open to EU member states. After Brexit, this opinion was not so important and a few amendments to the UPC under Art 87 would allow not only the post Brexit participation of the UK, but also further non EU member states.

    It is amazing to see how an opinion can change when one's own interests are at stake.....

  13. This is my second attempt to get this comment posted, after the first one made on 10/06/16 at around 11:30 a.m. CEST still remains to be published, despite its receipt having been confirmed.

    To the commentators on 10/04/16, 21:13 and on 10/05/16, 8:30:

    Don´t forget to mention Mr Haft who is also a member of said committee of the German Bar Association. His firm Hoyng ROKH Monegier was created just recently by a Dutch and a German firm joining forces in joyful anticipation of the UPC. Should the UPC now not become a reality, this may well consitute a delicate situation for them... It is vested interests like these that bring about desperate suggestions such as going ahead with the UPC at any cost and even without a crucial participant like the UK.

    It is left to the imagination of the readers why the IPKat (and more specifically the author of this post) seems to be so highly unwilling to put information like this in the public domain, apparently going so far as to even censor respective comments.

  14. Good to see that my comment submitted on 10/06/16 at around 11:30 CEST and again on 10/07/16, 10:41 CEST has now finally been published. Remarkable, however, is the alleged publication date and time of 10/07/16, 9:42 BST. It was not published (yet) when I looked for it on 10/08/16 and in the morning of 10/09/2016; I first saw it this morning (10/10/16). Has the publication date/time been backdated and if so, why? And what happened to the first comment filed on 10/06/16?

    Very mysterious things going on at the IPKat recently.


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