UPC to open in December - a triumph of hope over experience?

The GeordieKat looking forward to a big win,
but perhaps a bit less excited about the UPC

The AmeriKat has been whiskers down in a trial or two for the past couple of months, but has continued to monitor the political intrigue of Brexit discussions and the fate of the Unified Patent Court (or at least the UK's post-Brexit participation in the UPC).  Two camps have emerged from this debate - the pessimists and the optimists.  After the roller-coaster ride of 2016 and continuation of white-knuckling through 2017, the AmeriKat is, presently, agnostic as to the UPC.  This new approach is helping to temper the impact should anything unanticipated or unwanted happen to increase uncertainty.

Someone who is a touch more optimistic than the AmeriKat is Alan Johnson (Bristows).  Alan has been involved in preparations for the UPC for almost 20 years (and the previous false starts).  So why, despite everything that has happened, is he still optimistic that the UPC will happen?  He explains:

“A triumph of hope over experience” is one of my favourite expressions. 

At the start of the football season, hoping that Newcastle United might win the FA Cup (or anything really) is just one personal example. The last time NUFC got anywhere in the FA Cup was 1999 when they lost in the final (2-0 and for the second year in a row in case anyone is interested). 

That was the same year I first became interested in what we now know as the UPC. It was also that year that I joined the Brussels-based IP Committee of AmChamEU (the American Chamber of Commerce to the EU) which had years of discussions about the dossier with various Commission officials and the Permanent Representatives (Perm Reps) of successive states holding the EU Presidency.   

I remember well having a conversation with a Czech Perm Rep and asking him how he hoped to find a compromise between the bifurcated and non-bifurcated approaches to determining patent disputes. The answer? “We’ll find a way”. That answer typifies the history of the dossier: no matter the difficulties or set-backs (think CJEU Opinion 1/09 for instance) the powers that be (latterly the redoubtable Dr Margot Fröhlinger) have a knack of finding a solution. Which is why I continue to be optimistic that I will not have retired by the time the UPC starts.

Reading the results of a recent WIPR survey, I saw that I was in a minority in thinking that the UPC really will start this year, although it was unclear to me whether the majority were pessimistic about the UPC starting at all, or just on the latest target date. If it is just that there is scepticism that it will be December as opposed to January for instance, that is one thing, but if people think that it will be severely delayed, still less not happen at all, then they are, I believe, just plain wrong. And I say that as someone who was very sceptical about the short term prospects for the UPC following the Brexit referendum and indeed I held that belief almost up to the UK’s 28 November announcement. Why then am I now so confident? It all comes down to seeing the political will and, when needed, creativity.

The Brexit vote left many shell-shocked.  Many thought that the UPC was once again dead and buried. Some took a different approach. For instance the very next day, Willem Hoyng wrote a blog for EPLAW on the consequences of Brexit for the UPC, to which Leo Steenbeek (Philips) responded proposing steps which the remaining UPC countries could take to ensure the UPC could continue without the UK with little or no delay at all.

Views on the effect of Opinion 1/09 morphed from it meaning “the UPC must be an EU-only club” to “the CJEU never said that”, meaning one might add that Switzerland was unnecessarily ejected from the club. (I will come back to the effect of CJEU decision 1/09 in a later post.)

As the weeks passed by, the UK was first given a little slack and then asked to make up its mind (and quickly) about what it was going to do. We now know the answer - it will continue the steps towards ratification.  As much of a surprise as that was to many (me included), that decision cannot have been taken lightly and without a real intention to follow through.

One, of course, can read the announcement in many ways.  Perhaps the UK was being a good European in fulfilling its obligations and allowing the project to go ahead. Perhaps it was thought that the other states would go ahead anyway without too much delay (per Leo Steenbeek’s ideas), so we may as well be a part of it pro tem. Perhaps there was a hope or even expectation that the UK could continue to be a part of the system post-Brexit. But whatever lay behind the thinking, it would be bizarre to think that the UK will not now do its bit and ratify. Everything appears to be on course, and at a best guess, we will see the UK complete its ratification process around Easter, and possibly also deposit its instrument of ratification in early May. (I say possibly also, because the UK might choose to keep control along with Germany of the actual start date for the UPC which is the first day of the fourth month after the last deposit required.)

Given there are now enough non-mandatory countries signed up, and France did so what now seems an eternity ago, that would leave only Germany needing to ratify to start the system.  In the last few days we have seen progress in Germany.  The relevant legislation to amend the German Patents Act and approve ratification is scheduled for its second and third readings in the Bundestag on Thursday evening (9 March).  Friends in Germany suggest it may be expected to be waved through.   The German Federal Council, the Bundesrat, has to consent to ratification, as well.  As with the UK process, whilst there are still things which could go wrong, this seems no more likely in Germany than in the UK. That being so, the German target date for ratification (spring – not long after Easter) seems realistic. So although Germany will not actually deposit its instrument of ratification until August so as to trigger the December start date, there is no reason to suppose that the all-important Provisional Application Phase cannot start in late May or early June.

Could anything else go wrong? Never say never, but the only other issues could conceivably be practical. There is the judicial appointment process. It can only pick up from where it got to last autumn once the Provisional Application Phase starts, but it should not be incapable of being completed in the timescales we are talking about. More serious perhaps is the Case Management System – IT systems are, after all, notorious for over-running. What a note to end on. Would it not be a delicious irony if a Court dealing with technology were to be delayed by a failure of technology. But any delay would surely only be short. So surely the UPC will start pretty much as planned – and surely Newcastle United will be promoted back to the Premier League – surely..."

So if the UPC opens its doors in December, will it be a triumph of optimism over experience (and politics)?   The AmeriKat is not eager to predict the future.