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| IPAN's World IP Day event |
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| Sam Gyimah MP |
So the UK has fallen into line on the UPC, notwithstanding the Brexit referendum result. The UK's position and role within the UPC may have been trickier if the UK had not ratified before 29 March 2019 - the date that the UK is due to leave the EU. The UK's timely ratification is therefore welcome news for proponents of the UPC.
And so now all eyes turn to Germany. What are you waiting for? Oh yes, the outcome of the constitutional challenge as reported by the IPKat here, here and here...
Postscript in response to various queries: you can now find the official record of the UK's ratification here.
BREAKING NEWS: UK ratifies UPC Agreement
Reviewed by Eibhlin Vardy
on
Thursday, April 26, 2018
Rating:
Reviewed by Eibhlin Vardy
on
Thursday, April 26, 2018
Rating:
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Strange that this is reported as a "momentous day for patent litigators in the UK". I was under the impression that the UPC was intended to benefit SMEs? Surely, this should be a momentous day for SMEs?
ReplyDeleteI am aware that certain UK patent litigation firms and individuals, particularly those that have worked hard to set up the UPC, are set to profit massively if and when the UPC starts but surely this shouldn't now be the raison d'etre of the UPC?
There will be people who disagree, but I am very happy that the UK has ratified and thus rewarded all the hard work that Kevin, Alexander, Paul, Margot and all the others have put into making patent litgation at a truly European level a reality in the very near future.
ReplyDeleteCongratulations!
Wouter POrs
Bird & Bird The Hague
It is nice for UK to have ratified before Brexit, but I still fail to understand why UK can stay in the UPC once it has left the EU after Brexit.
ReplyDeleteI have seen a lot of of comments on the topic in which it was stated that this is possible. My doubts however remain.
How is this possible if the UK will not accept the the jurisdiction of the CJEU?
How can the CJEU accept a prejudicial question from a court from a non-EU member state?
How to enforce a judgement of the UPC in another country in the UPC and vice versa. By leaving the EU, Brussels does not apply any longer.
It is only once convincing replies to these fundamental questions will have been given that I will possibly believe that UK can remain in the UPC as a non-EU member state!
I am not against harmonisation of IP practices in Europe, on the contrary, but I do not like to be taken for a ride.
It is neither correct nor fair to put pressure on the GFCC. In any case there are questions before it about the boards of appeal of the EPO. I guess that those are on the pile of pending cases before the question on the UPC will be dealt with.
I further doubt that any pressure will impress the GFCC
Techrights: FINGERS OFF! You claim that some people have no ethics, but you do not hesitate to poach comments in spite of the request to keep your fingers off. I call this as well a lack of ethics!
I don't think the instrument of ratification has yet been deposited with the EU Council (which is the last official step needed)
ReplyDeleteNo deposit needed under UK international law practice. The deed is done.
ReplyDeleteIf you want Bristows "take" on this, go to the Kluwer patent blog, to read the piece contributed by Alan Johnson. There's a comments thread there too. Sorry for the absence of a Link. My IT skills don't run to it, on the device I'm using now.
ReplyDeleteI have noticed that the UK ratification of the UPC Agreement has a reservation that Article 4 (giving Court legal personality) shall not apply in the provisional period:
ReplyDeletehttp://www.consilium.europa.eu/en/documents-publications/treaties-agreements/ratification/?id=2013001&partyid=GB&doclanguage=en …
It seems to have been a reservation made when the Protocol on Provisional Application was signed by UK, but I don’t remember any comment at the time and I had not noticed this before.
Any idea what is the reason for this reservation? It seems to be difficult to set up a Court in London if it does not have legal personality there…
That last comment from Darren Smyth puts me in mind of what we used to do when we were children, and needed to promise to do something, when we had no intention of keeping that promise.
ReplyDeleteThe trick was to keep your fingers crossed, behind your back, when you made your promise.
What else but the good old "fingers crossed " trick is this UK "reservation" I wonder.
Attentive observer got it right, I'd also say; the stern of the Titanic is rising, the band is playing, and Mr Gyimah MP provides a statement like: "Ratification of the UPCA will keep the UK at the forefront of influencing the international system."
ReplyDeleteI do not have a lot of confidence in many German polititians, but why would any sane negotiator run and act after reading a statement like: "The unique nature of the proposed court means that the UK’s future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU."
This clearly translates as: No ratification in Germany equals one messy bargaining chip less.
A very interesting comment from Darren Smith.
ReplyDeleteIt brings other questions to mind:
- even if the reservation is only provisional, how can the liability of the Court, as provided in Art 5 UPCA be guaranteed?
- the same applies to the Liability for damage caused by infringements of Union law as provided in Art 22? I read "The Contracting Member States are jointly and severally liable for damage....
By Member states only member states of the EU are meant!
My conclusion: The announcement is a good PR coup, but we could not see the fingers crossed in the back of Mr Sam Gyimah!
What puzzles me is how the Isle of Man is included. They wanted to be in if possible, and the statutory instrument clearly speaks about including the Isle of Man in the ratification (7.5-7.7 in http://www.legislation.gov.uk/uksi/2017/162/pdfs/uksiem_20170162_en.pdf).
ReplyDeleteHowever, no information on inclusion of or extention to the Isle is included on the depositary website... and the UPC agreement is silent on extensions, which makes the status of the Isle very unclear.
Any thoughts?
How is this possible if the UK will not accept the the jurisdiction of the CJEU?
ReplyDeleteEdyta - I think there is no point in analysing the logic of the ratification too much. Civil servants will probably be sorting out peripheral issues like IP in ways which gives the UK maximum flexibility whilst the central issue of the CJEU is worked out. As yet the UK has not developed the 'principles' which will guide our future relationship with the EU and therefore we have no idea what our eventual status will be in Europe. I suspect that apart from a few very sensitive areas like the status of EU citizens in the UK it will be impossible to have anything apart from a full departure from CJEU jurisdiction. However we don't know that at this stage, and so we need to keep plodding along with Brexit keeping all options open.
ReplyDeleteI'm not saying it's not beneficial to UK SMEs for UK to be in the UPC, but I would like to ask WHY it is beneficial to UK SMEs, if anyone can help me out please?
ReplyDeleteAs far as the benefit for SMEs is concerned, be it in UK or elsewhere, one has to remember that the number of EP applications coming from EU member states is 35-40% at best.
ReplyDeleteAs this figure includes all applications, you can guess that the number of applications coming from SME is an order of magnitude lower.
The EPO has published a study showing the benefit for SMEs from the patent system:
http://documents.epo.org/projects/babylon/eponet.nsf/0/FF76F6F0783153B7C12581A2004DA0D2/$File/epo_sme_case_studies_2017_en.pdf
From 12 SMEs presented, there was no British SME in the panel.
It is always tooted that SME can get a greater benefit through the UPC, but beside nice words, repeated like a Tibetan prayer mill, nothing concrete has been presented.
If they want to act against a infringer, the minimum fare at the UPC is 11 000€. If attacked, a counter-claim for nullity has a minimum price tag of 20 000€. I am not convinced that a lot of SMEs are prepared for it. For a while there was even question of a litigation insurance for SMEs. This project seems to have died.
You may thus draw your own conclusions, for any European SME in general, and British ones in particular..
For the sake of argument, let's assume that the UPCA can come into force in its current form (ie with the UK's participation and including a court in London).
ReplyDeleteIn this scenario, Brexit gives rise to a conundrum for the courts: what to do when, for a non-unitary EP validated in the UK, a question arises regarding the interpretation of EU law?
Presumably, the UPC would (at least try to) refer questions to the CJEU. However, if Brexit goes according to the government's current plans, then the UK courts would be unable to make such references.
So does this mean that, for post-Brexit litigation concerning (only) the UK, a patentee's ability to secure preliminary references to the CJEU will depend upon factors such as: whether unitary effect has been requested; the opt-out status of the patent if no unitary effect has been requested; and the forum (eg the national court) in which the patent is litigated?
If so, then this seems to add yet another level of absurdity (and uncertainty) to the practical effects of bringing the current UPCA into force.
For example, consider what might happen if the UK Supreme Court decides to take its own path with regard to the interpretation of "inherited" EU legislation (such as the Biotech Directive or the SPC Regulations). This could mean that the outcome of litigation in respect of the UK will be subject to both forum-shopping and post-grant choices by the patentee (re: unitary effect and/or opt-out status).
Whatever happened to the concept of legal certainty for third parties?
All the above comments show that there is necessary step which has not been taken: ask the CJEU if the UPCA as it stands is a court common among EU member states like the Benelux court. This was done with EPLA, but not with the UPCA. One simply wonders why? It should certainly have been done after the Brexit vote.
ReplyDeleteIf the answer is negative, that is, the UPCA is an international court, not embedded in the EU legal system, then we will know for sure that the UP and the UPCA is dead.
If the answer is positive, that is the UPCA is a court common among EU member states, then the 29.03.2018 will play an important role.
It will then follow logically that UK cannot any more participate in the UPCA, if the supremacy of Union law and the involvement of the CJEU is denied by the UK. Politically it looks like this is the most probable option.
If the intention of the UK is to stay in the UPCA post-Brexit, is high time to decide on all outstanding questions for instance with respect to enforcement, liability of the court and the member states, etc...
Even the Pascoe report showed the numerous difficulties and hurdles which have to be taken for a post-Brexit participation. Also, staying in the EU customs union is not enough to insure post Brexit participation of the UK.
There are to many guesses and uncertainties about the possible post Brexit participation of UK in the UPCA, that it appears highly probable that all those questions will not be dealt with before 20.03.2019. and even before the 31.12.2020.
How can it be that learned lawyers and legal scholars accept to stay in such an unclear situation? Up to now I have not heard any concrete answer to those many important questions. So even if the UPCA enters into force with the UK, the only reasonable option is to opt-out!
And the "German" problem does not look to be solved in a few weeks. Banking on a quick decision of the GFCC is illusory. There are many other requests to be dealt with before the one on the UPC arrives on top of the pile. Even for a decision on its admissibility. There are also some requests about the EPO and its boards of appeal. Without a reply on those, no reply on the UPC.
The mere ratification of the UPCA, on top of it with a reservation about the legal personality of the UPC, is meaningless and does not solve any problem. On the contrary it makes all the problems more manifest.
I have come across an interview of Mr Alan Johnson to IAM which is very interesting, not to say flabbergasting.
ReplyDeletePlease look at:
http://www.iam-media.com/blog/Detail.aspx?g=ff1a1e48-63cf-4424-a4b7-d1de442d50a9
What is the most surprising is that according to Mr Johnson, post Brexit UK may stay in the UPC but not in the UP! With due respect to Mr Johnson, I have rarely read such utter nonsense. The UPCA has been signed in view of the UP and the two cannot be considered independent of each other.
The only point which one can agree with Mr Johnson is that before the UPC can start the PAP should be activated. But then why does the UK not want a provisional application of Art 4 UPC?
According to Mr Johnson, “Ideally, the BVerfG decision will be handed down by June or maybe July.” I do not know where he gets this confidence? On the same topic he states: “There seems to be a general consensus that the BVerfG will throw out the Stjerna complaint. Admittedly, most of those commenting seem to be patent lawyers, not constitutional lawyers, but if that is correct, it is a question of when, not if.” It has been shown in other places that all the amicus curiae went, for obvious reasons in the same direction, but this does not mean that they are right.
Mr Johnson further states that “I cannot see any reason why (for example) the participating states cannot agree a protocol - an interpretation protocol whereby it is agreed that "Member State" means "Member State at the date of signature (or ratification)".
Even if such a protocol would be signed, it would in my humble opinion require ratification, as it changes the meaning of the term “Contracting State” in the UPC. The protocol on interpretation of Art 69EPC is part of the EPC, and can only be amended by a diplomatic conference. Now suddenly for the UPCA such a protocol merely signed would be enough? Difficult to follow.
That “an interpretation statement from the Preparatory Committee would suffice” is even more daring! I am certainly not a constitutional lawyer, but neither is Mr Johnson, but I would never come up with such statements!
I would rather say that it is not the “UK [which] continues to want to be a part of the system” but the UK legal profession. And with that aim any approximation and supposition will due.
I can only encourage readers to look at the article, as I do not want to be too long for now.
Dear supporters of a post-Brexit participation of UK in the UPC, with or even without the UP, please come back on Earth. The sooner the better, but save us from such statements!
Techrigts: FINGERS OFF!!!
I was also mulling over the reasons why a quote that I had read from Mr Johnson appears to indicate that he believes that the UPCA can come into force post-Brexit. Now I understand: his view is predicated upon the assumption that it will not be necessary to amend the UPCA (to deal with Brexit issues), as, in his view, an interpretation protocol (or statement) will do.
ReplyDeleteMr Johnson's view presumably takes into account of the ability, under the Vienna Convention, for parties to an Agreement to reach a new Agreement regarding interpretation. Whilst I can concede that this proposed "fix" is at least not wildly implausible, it appears to me that there is still a long way to go before any conclusions can be reached upon whether it will work.
First question: is it possible for a later Agreement to provide an interpretation that was clearly not meant in the original Agreement? For example, is it possible to proclaim in a later Agreement that, were the original Agreement says "black", this is to be interpreted to mean "white"?
Second question: will an Agreement upon interpretation suffice if the proposal is to interpret the same term in different ways in different provisions? For example, the Gordon & Pascoe opinion proposes a number of amendments that seem impossible to replace with single (new) interpretations of terms.
Third question: is it even possible to craft an Agreement on interpretation if the original Agreement is not yet in force?
Fourth question: is an Agreement on interpretation even valid if, to all intents and purposes, it represents an amendment of the Agreement? This is especially pertinent to the UPCA, Article 82 of which prohibits amendment except in very specific circumstances after the Agreement has come into force.
Fifth question: the proposed "reinterpretation" takes a very different view on the fundamental nature of the court, namely seeing it as a court "Common to the Contracting States" (instead of "Common to the Contracting [EU] Member States"). Would this not have constitutional implications in the Contracting States? This suggests that any subsequent Agreement would need to be ratified according to the constitutional requirements of the Contracting States.
Any answers?
Not a single response to any of the questions that I posed last week. I know that this is a bank holiday week and so things might be a little slower than normal. However, I would have thought that a least one proponent of the UPC might be tempted to answer my questions ... especially as they raise issues that question the legal basis for (of the workability of) the entire UP project.
ReplyDeletePerhaps I should not be surprised. After all, I got no answers whatsoever to repeated questions about the legal basis for the Court of Justice receiving preliminary references from the UPC post-Brexit (if, according to the "perceived wisdom", the UPC is NOT an EU [Member State] court ... and hence will NOT be able to rely upon Article 267 TFEU for making preliminary references).
It is a shame to see such a total absence of engagement on such crucial issues. This appears to me to suggest that proponents of the UP system are happy to launch "at risk", and without any sort of "safety" or "stress" testing of crucial components of the system. I can only hope that, in the long run, this approach does not prove to be as irresponsible and reckless as it appears to me right now.