After the Order of the German Federal Constitutional Court (FCC) dated 23 June 2021 (see here the IPKat post) it is now clarified that Germany is able to participate in the Agreement on a Unified Patent Court (UPCA) and the Protocol on the Provisional Application of the UPCA (the PAP-Protocol).
In the process of full entry into force of the UPCA, there are some steps that need to be followed. The first step is Germany’s ratification of the PAP-Protocol. The German Federal President has already signed the ratification bill on 7 August 2021, promulgated on 12 August 2021. Although the German ratification has been of key importance for unlocking the process, it is not enough.
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Nordic-Baltic Regional Division, in Stockholm, Sweden |
The consent of two
more Member States is required in order for the Protocol to enter into force
and thus also put into effect the start of the provisional application period-
the PAP. These are expected to occur during autumn 2021.
With the entrance into force of the PAP, the legal capacity of the Unified Patent Court (UPC) will be established. The governing bodies of the Court will be assembled and all necessary secondary legislation will be adopted. Of central importance in this process is the final recruitment of the judges of the Court.
According to the Preparatory Committee, the period that will be needed in order to complete all these steps is eight months.
When this phase of preparatory work has come to a satisfactory stage, the last outstanding instrument of ratification of the UPCA itself will be deposited by Germany. The UPCA will then enter into force on the first day of the fourth month following the deposit of this instrument. Once the UPCA enters into force, the UPC will start its work and be available to the users of the European patent system.
According to the current timeline of the Preparatory Committee, the UPC will be fully operational by mid-2022.
For those of us who have followed the history of the Unitary Patent Package, and experienced the unexpected turns the system has taken revising the expected date of its entry into force a number of times, mid-2022 sounds just too optimistic.
But then again, why be pessimistic? Time will tell.
Reviewed by Frantzeska Papadopoulou
on
Monday, September 20, 2021
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I think that you have good reasons to be pessimistic rather than to be too optimistic.
ReplyDeleteYou have simply forgotten the problem of Art 7(2) UPCA.
The Preparatory Committee has carefully dodged the problem in its last press postings and the declarations of its chairman.
How can it be that a treaty can enter into force and a court can start working when a condition expressed in the agreement creating it cannot be fulfilled?
Art 31 and 32 of the VCLT cannot allow a different interpretation of Art 7(2) UPCA as its wording is crystal clear. If the notion of legal judge has a meaning the UPC cannot start its work without resolving the problem of Art 7(2) UPCA.
The only legally clean possibility is to amend Art 7(2) UPCA and its Annex 1 before it enters into force. This means a new ratification, at least in part, will be necessary. UPC’s supporters know too well that if a new ratification occurs, the UPC will lose its interest.
The "trick" with Art 87(2) UPCA is no more than a cheap trick with does not resist a serious legal examination. Deleting London to replace by a provisional allocation to Paris and Munich for later designating another city is at the same level of legal seriousness than all the arguments brought forward by those wanting to keep the UK within the UPC after Brexit. It is difficult to see in how far this trick in accordance with EU law.
Last but not least, the PPA still mentions expressis verbis that the UK has to ratify it. There again the wording is crystal clear and any contortions around the VCLT will not help.
What does it mean for legal certainty and democracy when governments simply ignore the terms of a treaty they have signed and ratified? It is not good and not acceptable.
The starting date for the UPC in mid-2022 is no more than wishful thinking of those who absolutely want to make profits out of the UP/UPC system. It is as basic as that.
Dear Attentive Observer,
ReplyDeleteI agree with you but would like to ask a "what if" question: What if the UPC did get started with the London section split up in Munich or Paris (or any other solution not mentioned in the UPCA): where to appeal? Does the ECJ have jurisdiction in that case? And can it declare the UPCA void?
Dear Patent Wolf,
ReplyDeleteYou ask the question for which I honestly do not have an answer. I thought of it myself and have not come to a solution or seen a solution published anywhere.
This does however not mean that it would be right to do so.
It is actually a question for specialists in international public and constitutional law. The UPCA has never been vetted by constitutional specialists or the CJEU. One wonders why.
It is a question of international public law as it is about an international treaty and the VCLT applies. It is a question of constitutional law as the right to the legal judge would not be respected by acting clearly against the letter and the spirit of the UPCA.
There is also another aspect: I do not think that the countries fighting for the reallocation of the London duties to their country, Italy, The Netherlands and Ireland will simply accept to be bypassed “provisionally” by Paris and Munich. The whole business of wanting a provisional allocation to Paris and Munich does not make any sense. If it has to change, then why not decide where it has to go for good before the start of the UPC.
The whole business of the provisional allocation is based on a very tortuous interpretation of the UPCA. It was first uttered by a French lawyer who wanted to keep the Brexit gift to France, but when it came to the second ratification, the Germans also claimed it for themselves. This legal basis for this provisional allocation is not existent and again wishful thinking so as the UPC can start as soon as possible.
The necessity of indicating the seats of the different sections of the central division in the UPCA is the result of the intense haggling between FR, DE and UK. For the ratification the position is easier as the formula chosen implied the necessary ratification by those three states.
It is purely a gut feeling, but I think that the proponents of the UPC will go forward in the hope that nothing will happen. I rather think this is putting their heads in the sand.
I would guess that a party losing before the UPC after a decision of the UPC in one of the technical areas which should be dealt with in London will make everything possible to get to a court, be it in its country of origin or at the CJEU.
In spite of not having an answer to your question, I cannot see the UPC starting in mid-2022, the Damocles sword hanging over it being very dangerous if not lethal.
Whatcomes to my mind is the expression "Fake it till you Make it", which for me sums up the times in which we live today. The market demands success, and so you must deliver exactly that, if you are to survive.
ReplyDeleteIf you are Wirecard's CEO, Braun, you fake the success of the company until that market success finally arrives, in the real world. If you are the Theranos CEO, Elizabeth Holmes, you fake the success of your blood-testing company until, one day, Theranos does actually make it.
And if you are a proponent of the UPC, the rule still applies. To impress the powers that be, you need to fake its success for as long as it takes to get the UPC up and running. All the way to the CJEU if need be.
Not saying though that the comparison fits perfectly though. In the cases of Theranos and Wirecard, Braun and Holmes are of course both now in prison.
I expect it will be as in any other court. When a party is brought to court and is not interested in a decision, this party challenges the competence of the court from the start. In pharma cases you can argue that Munich and Paris are not competent, in all cases you can argue that the PPA requirements were never met. If unsuccessful, you can argue the same in appeal and finally at the CJEU.
ReplyDeleteThank you, IP Mouse, this sounds reasonable. But would it, in your opinion, be possible to challenge the validity of the UPCA before such a case appears? It could take years until such a decision is made, going through so many instances.
Delete@MaxDrei - The "until you make it" bit for UPC is when enough people have spent money on UPs that no court feels they can simply smash the UPC system on essentially technical grounds.
ReplyDeleteFor EPLA, its promoters asked the opinion of CJEU. We all know the result: not conform to Union law, cf. C 1/09. And EPLA was dead.
ReplyDeleteEPLA's promoters became UPCA's promoters. It has been claimed all along that the UPCA is in conformity with Union law, but this has never been tested.
If the UPCA was so clearly conform to Union law, why was the CJEU never asked its opinion about it? The question thus remains: were the UPC/UPCA promoters frighten that the CJEU would not give a positive answer?
In the UPCA as it stands, the problem of Art 7(2) UPCA has not been solved, as London is still mentioned as seat of one of the sections of the central division. In the annex to the UPC IPC classes A and C are meant to be dealt with in London.
Looking at it objectively: a treaty relating to a Court accepting primacy of Union law, mentions a section located in a country which is not any longer member of the EU. How can such a treaty be in conformity to Union law?
Up to now the solutions offered by the UPC’s promoters were characterised by a quite wild legal fantasy as the duties allocated to London should be “provisionally” distributed between Paris and Munich, in order to be later be allocated to another country.
It is difficult to see any legal basis in such a bizarre arrangement. Neither Art 31 and 32 VCLT nor Art 87(2) can really be taken seriously as legal basis. To me this resemble more to Carpetbagger's discussions than a sound legal reasoning. Which IPC class should “provisionally go to Paris: A or C or vice-versa?
If anybody tells me this is in conformity with Union law, I will have to burst out in laughter. If the notion of the rightful judge does have any value, and I believe in Europe it has a value, it is not possible that the hodgepodge thus created can be in conformity with Union law.
There is another aspect in the UPCA which seems difficult to reconcile the UPCA with Union law. A judge who is dismissed by its peers according to Art 10 of the Statute of the court, which is part of the UPCA has no means of redress, not even to the CJEU. How can this be in accordance with Union law?
I can only but agree with Max Drei: what is going on with the UPCA is in a sense criminal as only private interests are behind the fig leaf of an imperious necessity for Europe’s industry in general and SMEs in particular.
I also agree with IPMouse, the only way to challenge the mess is to bring it in front of the CJEU one way or another.
FOARP is right. The original idea of the UPC promoters was to bring it into force as quickly as possible and before everybody could have a careful look at it and realise what was going on. I see one positive effect to the Brexit: it stalled the entry into force of the UPC and might through Art 7(2) UPCA bring it to fail.
The only correct way to deal with the problem posed by Brexit is to clarify the problem created by Art 7(2) before the UPC enters into force.
But this means further delays, and by then the interest for the UPC will have gone. After all, the EU lived perfectly well for 50+ years without something like the UPC and creating such an institution in view of the very few transnational litigations a year is not worth it.
There are other ways, much cheaper, to harmonise litigation within Europe and those ways can apply not only to the whole of the EU, but also to all member states of the EPC.
In the last para of #8, Attentive nails it. If the goal is to harmonise within the EU the jurisprudence on patent validity (and infringement) there are better ways to do it than the UPC as presently set up. Better because they build on the world's best body of jurisprudence on patent validity, namely the established case law of the Boards of Appeal of the EPO. Industry is always reminding us of its need for "certainty" when contemplating further rounds of investment in technological innovation. For industry, litigation is therefore to be deprecated, to be seen as a last resort, a damper on investment in new technology. The litigators would like to see more uncertainty, thereby to generate more litigation, earlier, a first rather than a last resort. Now ask: which group of people is driving hardest for the UPC? Could it be those who make money out of patent litigation?
ReplyDeleteOf course, lawyers in Paris and London consider themselves to be unfairly treated, when all the business of the EPO Boards of Appeal is conducted in Munich. One has to ask to what extent the efforts to hobble and neuter the Boards are made by persons with greater loyalty to Paris and London than to the industries who crave certainty in matters of patent validity. London is the world's epicentee for rent-seeking, for something called Rentier Capitalism. Who remembers what Prime Minister Johnson's rallying cry in his last election campaign "F*ck Business"?
Come on, all you readers who want to see more technological innovation in Europe. Let's take the opportunity given by BREXIT to build something better than the flawed UPC. Give the job to ta committee of three EU Member States other than France and Germany. I suggest the Republic of Ireland (English law, computer-implemented inventions, medical technology), The Netherlands (pre-eminent in patent litigation, technologically vibrant) and a country south of the Alps, perhaps Italy.
It seems to me that the following considerations of the UPCA have also been completely ignored by the proponents of the UPC :
ReplyDeleteCONSIDERING that the Contracting Member States should, in line with the case law of the Court of Justice of the European Union on non-contractual liability, be liable for damages caused by infringements of Union law by the Unified Patent Court, including the failure to request preliminary rulings from the Court of Justice of the European Union;
CONSIDERING that infringements of Union law by the Unified Patent Court, including the failure to request preliminary rulings from the Court of Justice of the European Union, are directly attributable to the Contracting Member States and infringement proceedings can therefore be brought under Article 258, 259 and 260 TFEU against any Contracting Member State to ensure the respect of the primacy and proper application of Union law;
RECALLING the primacy of Union law, which includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the general principles of Union law as developed by the Court of Justice of the European Union, and in particular the right to an effective remedy before a tribunal and a fair and public hearing within a reasonable time by an independent and impartial tribunal, the case law of the Court of Justice of the European Union and secondary Union law.
Surely, there must be something in those considerations upon which a party, including any member state, could act and seize the EUCJ ?
I was also under the impression that at some stage, one of the drafts (unfortunately don't remember which document now) contained an explicit reference to seeking approval from the EUCJ (or perhaps it was only the EU Commission) as to the validity of the agreement ?
@ Max Drei
ReplyDeleteThe UPC is the revenge of the lawyers over the patent attorneys.
Although they can, under certain conditions, represent parties before the EPO, it is a very rare occurrence. They have not really been present before the EPO.
They wanted to keep the pie for themselves and wanted to have the exclusivity of representation before the UPC.
They had to accept that parties can be alternatively represented “by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate”, cf. Art 48(2)UPCA.
Art 48(4) Representatives of the parties may be assisted by “patent attorneys”, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.
According to R 292(3) UPCA “patent attorneys” shall be allowed to speak at hearings of the Court at the discretion of the Court and subject to the representative’s responsibility to coordinate the presentation of a party’s case.
In other words they will have a similar position as accompanying persons according to G 4/95 in procedures before the EPO....
@NeverADullMoment
ReplyDeleteArt 42(2)UPCA, second sentence: "The prior opinion of the European Commission on the compatibility of the Rules of Procedure with Union law shall be requested."
No approval of the UPCA by the CJEU is foreseen.
Has the prior opinion been requested?
DeleteAs the RPUPCA only exist as 18th draft, going back to 2015, I doubt that the commission's opinion has been requested.
ReplyDeleteAt the member of the commission in charge of the topic is one of the staunchest supporters of the UPC it will go through without batting an eyelid.
It is not clear from the UPCA or from the PPA when the opinion of the commission has to be sought.