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Wednesday, 28 June 2017

UK UPC ratification timetable to continue in September, while Prep Committee acknowledges German constitutional hold-up


Confused about UK legislative process?The IKat is here to help
The recent IPKat post bringing news that the Order on Privileges & Immunities had been laid before the UK Parliament brought several e-mails questioning the legislative steps needed to ratify the UPC Agreement (UPCA) and the Protocol on Privileges & Immunities (PPI).  Your questions are her command, so this morning the AmeriKat did some research into the steps required and timing following the recent election (thanks to some handy and helpful Government resources and constitutional lawyers). The below is what she found out:

Preliminary (clarifying) point

There had been previously a lot of confusion as to the legislative steps required to ratify an international agreement.  The process in the UK when ratifying international treaties is essentially three-step:
(i) Give Parliament an opportunity to object to the treaty:  Lay the international treaty (be it the UPC Agreement or the Protocol on Privileges & Immunities) before Parliament for 21 sitting days.  Both Houses have an opportunity during this time to pass a motion saying that the UK should not sign up to this treaty.  Essentially this is a "shout if you disagree" stage.  If nothing happens - like it did with the UPC Agreement and PPI, we move on to the next step.  
(ii) Incorporate the treaty obligations into national law.  The UK's policy has been to implement their international treaty obligations into national law (if they did not they would be bound only by international law). At this stage we have seen last year's Patents Order (which flowed from the UPCA) and now this week's Order on Privileges & Immunities (flowing form the PPI).  
(ii) Formal ratification:  Once the Order on Privileges & Immunities is passed (see more below), the final stage is that Government uses its powers derived from the Monarch (primarily exercised by the PM and Foreign Sectary) to deposit the final letter/instruments of ratification.  
Final steps required for UK ratification of the UPC

Step 1 - Pass scrutiny
Having been laid before Parliament, the Order on Privileges & Immunities ("the Order") now needs to go through the scrutiny process.  The scrutiny committee responsible for the Order is the Joint Committee on Statutory Instruments (JCSI). The JCSI, made up of peers and MPs, scrutinzes the legislation, essentially checking to see of the powers to create the secondary legislation (the Order) have been used correctly.  If they have any questions, they may ask the IPO or Parliamentary lawyers.  They will prepare a report for the House of Commons and House of Lords summarizing their review and setting out any remaining questions that should be debated.  The AmeriKat understands that JCSI's remit is narrowly defined to more legalistic issues, not policy issues.    
Where Steps 1 and 2 take place
Step 2 - Debate in Parliament
Once passed through the JCSI, the Order goes on to be debated in each House - Commons and Lords.  The debate is normally held in a special committee that is set up in each House - a delegated legislative committee - with the task of reviewing Statutory Instruments. The composition reflects the parties in the House - which will be a different makeup than in previous years given the lack of majority following the recent elections.  The length of the debate can depend on how many wish to speak.
Usually in the debates, a minister will introduce the legislation.  The opposition will then have a chance to respond, then other members have an opportunity to speak.  The minister then wraps up the position in a closing speech.  It then goes to vote.  The vote is a simple majority.  The Chair of the Committee then declares whether the order stands or falls (unlike primary legislation, statutory instruments stand or fall in tact - there is no possibility for amendments). 
The selection of the members for these committees will be done by a committee and is expected to be confirmed approximately 2 weeks before the vote.  There may be legalistic questions, as well as some policy debate about the Order and the UPC (generally), in both Houses.    
Step 3 - Privy Council approval 
If the Order is passed in both Houses, it will then go to the Privy Council for approval.   The Privy Council is able to approve it as the Queen gives them powers to do so. The Privy Council meets once a month – usually around third week of the month.  
Step 4 - Ratification 
The Order is then "made".  The UK can then ratify the UPCA and PPI.  This requires a formal letter drawn up by the Foreign Secretary and an instrument of ratification which states that the UK agrees to be bound by the UPC Agreement and the PPI.  These documents are then deposited with the depository which is the Secretariat of the EU Council.  This process can take a few weeks.
Timing

None of the above will be happening until Parliament sits again on 5 September.  This is because Step 1 cannot happen until the JCSI is formed.  Following the recent election, it has not yet been reformed and will not be until September.  If there are no further delays or unexpected hurdles, based on her research it may be that the UK may have ratified the UPC by end of November/early December 2017. This means there could be an early 2018 sunrise period with the Court opening in late spring 2018.  Of course, this does not take into account the matter of Germany (see below).

IP Minister Jo's brother - Foreign
Secretary  Boris Johnson
Scotland 

The Order is UK wide, but there are certain matters covered which touch on devolved matters so have to be dealt with by the Scottish Parliament with a separate order soon to be laid before them.  The process is similar to the above - they will go through the scrutiny, debate, Privy Council process but have time limits (minimum 40 days).

Next Steps

Of course none of this means that the UPC will be up and running soon after, of course, as there is the matter of Germany's constitutional challenge.  The German ratification delay was today dealt with in this message from Alexander Ramsey (Chair of the UPC Preparatory Committee).  He stated that another "layer of complexity has been added" which had "unfortunately...brought a pause to the German ratification of the UPCA and the Protocol on Provisional Application".  He continued:
"It is difficult to get a clear understanding of what is the status of the suit and what it is about, since there is not much information publicly available. The complaint has not been notified to the German Government or the Parliament. According to publicly available information an unnamed individual has lodged a complaint against the bill regarding the German ratification of the UPCA and has also submitted a request for preliminary/emergency measures ordering the suspension of the ratification until the Court has decided on the merits of the case. The Court seems to have informed the President of the Republic informally and as seems to be the usual practice in Germany, the President has decided not to proceed with the ratification until the Court has decided on the request for preliminary measures. 
Under the current circumstances it is difficult to maintain a definitive starting date for the period of provisional application. However, I am hopeful the situation regarding the constitutional complaint in Germany will be resolved rather quickly and therefore I am hopeful that the period of provisional application can start during the autumn 2017 which would mean that the sunrise period for the opt out procedure would start early 2018 followed by the entry into force of the UPCA and the UPC becoming operational.

A more detailed timetable will be communicated on this website as soon as the picture is clearer."
As ever, the IPKat will keep readers updated as to the progress in the UK and Germany.

8 comments:

Anonymous said...

What difference will the Conference recess (Parliament breaks up again for party conferences between 14 September and 9 October) make to this estimate? It leaves a very short time to sort out the committees (a process which is only barely starting now and won't be complete until at least September) and have them consider the legislation. Isn't it more likely this will happen in October - and we are not certain how long it will take. And won't the Scottish order have to be in place too? When is that realistically expected to happen? January sunrise seems a little optimistic to me. I suspect a month or two later but we're all guessing..

Russell Barton said...

Thanks for the informative post Annsley.

As I understand it ratification itself is not needed until 3 months (plus one day) before the UPC becomes fully operational.

As alluded to in Alexander Ramsay's message, at this point the source of delay is not ratifications of the UPCA per se, but that the inability to start the provisional application phase which should last at least 6 months before the UPC becomes fully operational.

In relation to actions from the UK, the provisional application phase can be kicked off by providing a notification that the UK has parliamentary approval to ratify rather than by actual ratification. Presumably this means only steps 1+2 need to be completed and that steps 3+4 could be completed during the first 3 months of the provisional application phase.

Proof of the pudding said...

Before the UK parliament debates the affirmative SI , would it not make sense for the JCSI to first check whether there is any possibility of the UK staying in the UPC post-Brexit?

Even if one assumes that Gordon and Pascoe are correct and that the UK's continued participation is possible, there are a number of preconditions that must be met. The problem for the government is that some of those preconditions might be (politically or practically) impossible, or inconsistent with the government's Brexit policy in another area.

Problematic areas that immediately spring to mind are the jurisdiction of the CJEU (both Mrs May and, more worryingly, Mr Hunt have said that this must come to an end) and the time that it will take to get all relevant parties to agree upon and ratify a revised version of the UPC Agreement. The latter point is particularly challenging, as I would question whether there is already too little time - and there will certainly be too little by the time that we might actually know what the UK's exit agreement looks like (and so precisely how the UPCA needs to be re-written).

To me, it would seem to be the worst of all possible worlds for the UK to help bring the UPP to life, only then to (shortly afterwards) exit the EU and (likely) both leave the unitary patent system and bring into doubt the continued validity of anything done under the UPC Agreement. That would take the levels of uncertainty for rights holders and third parties to truly stratospheric levels.

Of course, to take any of this into consideration would require joined-up thinking within government... and so I guess that I had better not hold my breath waiting for that to happen!

Anonymous said...

The JCSI's remit is just to check that secondary legislation is empowered by earlier primary legislation- a constutional check that the executive is not bypassing full parliament scrutiny. Its not within their remit to look at the merits of the actual legislation.

The commons & Lords committees can look at the merits but as it says in the summary

" this Order implements the provisions of
an international agreement to which the UK is obliged to give effect"

Parliament has already approved the relevant international agreement (PPI) and has already granted the executive power to ratify the UPCA.

Proof of the pudding said...

Anon - all of the previous legislative steps that you mention occurred prior to both the EU referendum and the triggering of Article 50. Thus, given that the UPCA requires its PMSs to be EU Member States, one would have thought that it would be eminently sensible for the JCSI (and/or the committee of the commons or Lords) to conduct a quick check of whether the UPCA stands any chance of surviving.

Whichever way you cut it, the current UPCA is unworkable post-Brexit. Given that there is no amended UPCA (nor any prospect of such an amended Agreement being drafted, agreed and ratified in the near future), why on earth would Parliament contemplate giving the government the green light to ratify something that looks like it will be pronounced (by the CJEU) dead on arrival?

If your argument is merely that procedural rules prevent the various committees applying common sense, then what does that say about the current rules? Personally, I would have thought that the unexpected arrival of an existential threat to the UPC (ie Brexit) justifies "bending" the rules a little to allow for an assessment of the UPCA's chances of survival.

Anonymous said...

The international agreement refereed to is "Privileges and Immunities of the Unified Patent Court" which was signed after the referendum and laid before Parliament on 20 Jan 2017 after the timing of Art 50 was confirmed. It passed. The only objector was Douglas Carswell whose Early Day Motion didn't attract a single additional signature.

Yes my primary point was one of procedure- it would be unconstitutional for these committees to try use their scrutiny of this order to overturn decisions already made by the whole of parliament.

In relation to your broader point that parliament should have a rethink - I understand your point of view, and I think it shared by many, but I disagree with it. I don't think the UPCA will require much amendment and the most useful thing in the medium term will not be the precise amendments to the UPCA (which can be done by the Administrative committee) but simple agreement from both sides as part of the Art 50 negotiations that the UK should stay in order to empower the committee. In my opinion that becomes much more pressing and more likely to happen once the UPC is up and running and working well with the UK in it.

Proof of the pudding said...

Anon - so, in other words, your preferred approach would be to bring the UPP into force and then hope and pray that it can survive Brexit.

To be frank, my view is that adopting such a "wing and a prayer" approach would be highly irresponsible.

The interests of patent applicants and the public are best served by providing legal certainty. Pushing ahead at a point when it is impossible to determine whether known (fatal) problems can be resolved by a known (and very short) deadline will lead to nothing but legal uncertainty, to the detriment of all but the legal profession.

And by the way, regardless of how much the UPCA will need to be amended in order to survive Brexit, certainty will only ever be provided if and when the CJEU "rubber-stamps" the novel mechanism by which the amended UPCA proposes to comply with EU law. Not much chance of that happening pre-Brexit, is there?

Proof of the pudding said...

Have the Kats been caught napping on the job? It has been almost two weeks now since potentially "bombshell" information was made public regarding the grounds of the constitutional complaint in Germany:

http://patentblog.kluweriplaw.com/2017/08/16/upc-finally-some-news-from-the-german-federal-constitutional-court/

Depending upon one's viewpoint, this could spell the end of the UPC as we know it. This alone is surely enough to justify a few mewsings on this development... or has the cat got all of the Kats' collective tongues?

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