The constitutional complaint which was filed last year against German ratification of the Unified Patent Court Agreement, has been shrouded in secrecy. The complaint has not been published, nor the observations about the case, which the German Federal Constitutional Court (FCC) requested from goverment and a series of other organizations. Professor Winfried Tilmann gave his personal view on this blog and two days ago, the German Bar Association published its findings (co-authored by Tilmann) as well. Dr Alex Robinson, associate at Dehns, wrote an article about the developments, which Kluwer IP Law is happy to republish here as a guest post.

By Alex Robinson

Following the surprise submission last year of a “constitutional complaint” against German participation in the Unified Patent Court system, ratification of the UPC Agreement was put on hold.

The Federal Constitutional Court invited observations from a large number of third-parties representing German lawyers, government and industry, and set a 31 December deadline. The German Bar Association (Deutscher Anwaltverein, “DAV”) has been first off the blocks to make public its own set of observations, which can be read (in German) here (I have made a machine translation into English available here).

The details are rather obscure to anyone without a solid grounding in German constitutional law, but in essence the DAV argues that the complaint is inadmissible, and if deemed admissible, is unfounded.

Submissions from other parties are widely expected to take a similar line, though some variation in reasoning and level of detail might be expected.

Following the receipt of these submissions, it now falls to the Court to make a decision on admissibility. Nothing is yet known about the timetable, but a decision during the first half of this year is expected by many.

If the Constitutional Court agrees with the DAV that the complaint is inadmissible, there may – just – be time for the UPC Agreement to enter into force by the end of 2018, subject to German and British ratification (the question of whether the UK will ratify the UPCA – and whether it can continue to participate after Brexit – is another story…).

One irony which hasn’t escaped me in this saga: the author of the complaint is widely-understood to be a German lawyer named Ingve Stjerna, who has been a longstanding critic of the UPCA and the legislative process leading up to it. In particular, he has previously criticised the European-level negotations for a lack of transparency. Despite this, the text of his complaint to the Court has not been made public, and on his website he appears to take issue even with the limited summaries that have been made available by those who’ve seen it – which hardly seems a consistent attitude, bearing in mind his stance on the UPCA, nor with the fact that an alleged constitutional violation is surely a matter of considerable public interest. Whatever the outcome of the case, the publication of the DAV’s response is therefore to be welcomed for shedding more light on the substance of the complaint.

This article was published earlier on ‘Inspired Thinking, the weblog of Dehns Patent and Trade Mark Attorneys

For regular updates on the Unitary Patent and the Unified Patent Court, subscribe to this blog and the free Kluwer IP Law Newsletter.

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32 comments

  1. The Deutscher Anwaltverein is not identical to German Bar Association, but is a separate special interest group of German attorneys at law.

      1. DAV is not the official German Bar Association to which you have to be admitted when acting as an attorney at law. Quite in contrast, it is nothing more than a private association with voluntary Membership. The intentional mistranslation on their Website does not change this situation.

        The official association is the “Bundesrechtsanwaltskammer” and includes various sub-organisations “Rechtanwaltskammern”.

        1. Thanks for the clarification. In that case the (English version of ) the DAV appears to be misleading! Nevertheless, their submissions appear to be worth reviewing.

          1. Alex,

            I would agree that they are worth reviewing … but mainly for the sake of amusement. I lost count of the number of distortions and implausible assertions that I spotted even on a brief run-through (using a machine translation). A few of my initial thoughts can be found on the following thread:
            http://patentblog.kluweriplaw.com/2017/12/12/prof-tilmann-fcc-several-reasons-reject-inadmissible-complaint-upca/

            My particular favourite amongst the numerous assertions that I found mirthsome was that, despite the absence of any pronouncement from the CJEU on the subject, compliance of the UPCA with EU law is apparently “acte éclairé”. Very amusing!

            I also look forward to seeing which further, “creative” arguments are deployed by the DAV later in the proceedings.

            In deploying a “nothing to see here” approach to compatibility between the UPCA and EU law (in particular, Opinion 1/09), the DAV has asserted that “The UPCA is now limited to EU MS”. However, we all know that this is not the whole story, as the UK will soon cease to be an EU MS. Indeed, the UPCA does not contain any provisions enabling PMSs to be automatically kicked out if and when they cease to be EU MSs. Against this background, the DAV’s statement can be seen to be at best misleading and at worst an untruth.

            Whether this has any impact upon the DAV’s arguments against admissibility remains to be seen. From my perspective, it is questionable whether the precedent relied upon by the DAV (2 BvR 282/13) is decisive for the present complaint. This is not least because there are so many differences in the underlying fact pattern (eg the complainant is a German national, and the issues at stake are more akin to the kind of fundamental rights acknowledged in 2 BvL 1/12 as being “indelible” – ie incapable of being overridden by national legislation). However, without knowing the precise arguments advanced by the complainant on the grounds of “Völkerrechtsfreundlichkeit”, it is difficult to comment … which kind of highlights why it was not really appropriate for the DAV to publish their submission (regardless of how much the rest of us are keen to know what is going on).

        2. Correct, GPA. Bundesrechtsanwaltskammer (BRAK) has also been given the opportunity to comment on the complaint. It appears, though, that they have not used it.

  2. Alex,

    I think that you are too quick to criticise Mr Stjerna. I suggest that you ask yourself a few simple questions: How much information typically reaches the public domain regarding complaints that are pending before the BVerfG (such as those relating to the EPO)? Do you think that there is a reason why we know so little about such complaints? Could this perhaps have something to do with the rules governing proceedings that are pending before the BVerfG?

    I can (just about) cope with the biased presentation of information, such as discussing what might happen if the complaint is ruled inadmissible, but not bothering to expend any words on what happens if the complaint is taken up for a full judgement … or even if it leads to a reference to the CJEU. Whilst bias is not nice to see, I long ago gave up hope of reading truly balanced reporting about the UPC. However, as you may well be unaware of pertinent facts, I would suggest that you lay off the personal attacks for now.

    1. I prefer leaving these shallow attempts of personal attacks uncommented and not give such people more credit than they deserve. As far as I can see, this author has not yet contributed much of substance to the UPC discussion, other than letting the public know that – unsurprisingly, given his professional background – he would be in favour of a UPC and that he does not agree with whatever may contradict that world view. On the other hand, as his comments often reveal a profound lack of understanding of the issues involved, I would suggest to just let him say whatever he wants, relying on the well-known Goethe citation: “Du gleichst dem Geist, den Du begreifst, nicht mir!”

      1. Marlin: where in this post do I say that I am in favour? And which comments “reveal a profound lack of understanding”? Rather than offering constructive criticism, you instead accuse me of “shallow attempts of personal attacks” and then indulge in the same yourself.

        If I have made an error of fact, correct me; if you deem my opinions unwarranted, I am happy to debate different points of view. As things stand, I am a mere interested observer of these developments, which are fascinating at a European and global level even before the Brexit angle is taken into account. I believe neither that (a) reporting the mere existence of a set of submissions which are now in the public domain, and setting out some of the possible consequences, nor (b) remarking upon a certain irony in the fact that transparency apparently only flows one way, should be deemed especially objectionable.

    2. Dear “Concerned”,

      If there is a rule forbidding the publication of details regarding pending proceedings, please let me know and I will update the post accordingly. None of the German attorneys I’ve spoken to so far have drawn my attention to the existence of such a rule, however.

      That aside, please tell me what you consider to be biased in my report of the DAV submissions. Is it biased to say that a ruling of inadmissibility might – *might* – just about allow time for DE and GB ratification and entry of the UPCA into force prior to Brexit? I’ve made it very clear that entry into force is conditional upon both DE and GB ratifying the agreement, and have also acknowledged the uncertainty surrounding the GB position both pre- and post-Brexit. What would an unbiased position look like, in your view?

      1. Dear Alex,

        Whatever one’s take on Mr Stjerna’s views, it is not possible to accuse him of being ill-informed. Thus, it will not be for nothing that he commented “the lawfulness of the incident is under review by different authorities” (re: a 3rd party revealing previously non-public information about the constitutional complaint). This indicates that at least he believes that there are laws governing what can and cannot be published in relation to a pending complaint.

        The attorneys that you have spoken to may not have not drawn your attention to a rule. However, that does not mean there is no such rule. My suggestion would be that you ask someone who is intimately familiar with the rules governing procedures before the BVerfG.

        With regard to bias, I simply cannot believe that you need me to spell it out. However, there are none so blind …

        In my view, an “unbiased” report would have additionally commented upon what might happen if the BVerfG does NOT dismiss the complaint as inadmissible. This is because it is undeniably hard, if not impossible, to see how the UPC in its current form can survive if the BVerfG takes the complaint up for a full decision (especially if it decides to refer questions to the CJEU).

        With this in mind, take a moment to consider what the relatively uninformed reader might take away from a report that does not even contemplate this alternative outcome. The answer, of course, is that they would be left with the impression that such an outcome is so unlikely that it is not worth commenting upon. Would you consider that to be a “fair” (ie unbiased) assessment of the current situation?

        1. Dear “Concerned”,

          If every single post on the UPC is obliged to acknowledge all possible outcomes in exhaustive detail, we will be here for a very long time indeed. Other possibilities have been discussed in detail elsewhere, including on this blog. My post above merely highlights one possible outcome; nowhere do I say that it is certain. Indeed, I think I make it fairly clear that any potential entry of the UPC into force prior to Brexit is conditional not only on a swift finding of inadmissibility but also on a pre-Brexit GB ratification. Neither of these can be taken for granted; I trust the readers of this blog to be able to infer the alternatives.

          It seems that some commenters will never be happy with any post short of an outright denunciation of the UPC…

          1. Alex,

            If this were an isolated incident, then I might be more inclined to accept your excuse about the importance of being concise. However, I should point out that the vast majority of reports on the complaint, including on this blog, do not even mention (let alone discuss in any detail) what happens if the complaint is admitted. Given the important and far-reaching consequences connected with that possibility, it is plain to the objective observer that it merits far more attention than it is being given by UPC commentators such as yourself.

            Let me be clear, I am expecting neither “exhaustive detail” nor a “denunciation” of the UPC. I just believe that that “balanced” reporting on this topic at the very least demands acknowledgement of the existence of other possibilities (and hints as to their consequences).

            If you want to see how a lack of balance in reporting can (mis)shape general perceptions, then take a look at the misunderstandings that are evident in the Register’s report on the DAV’s submissions. Whilst those misunderstandings derive primarily from the “smoke and mirrors” approach adopted in the DAV’s submissions, it does illustrate what can happen if you only present one side of the story.

  3. What more could the German Bar Association (GBA) say than to plead for the complaint not being admissible. Not admissible, means no discussion as to the substance. The best way to push the problem under the carpet.

    Not only Mr Tilmann’s lawyer firm, but plenty of other German lawyers firms have a direct interest that the UPC starts as soon as possible. They want a return on investment, no more no less. The position of the GBA, although clad into a lot of verbosity has to looked at in this light.

    It interesting to compare what Mr. Tilmann said in GRUR and what is said in the position paper of the GBA.

    The similarities are certain, which is not a surprise as Mr. Tilmann is the head of the committee on IP matters. It all turns about various articles about the German constitution like Art 79(3), 38(1), 20(1). Some Art of the TFEU also come into the discussion.

    By any means I am not a specialist in constitutional law, but some of the positions taken in the paper are quite surprising.

    To claim that it is not necessary that the UPCA be in all respects in accordance with German constitutional law and Union law is quite daring. Does it mean in clear that some international agreements in which Germany participates may not be conform with the German Constitution, so that constitutional rights might be ignored? A trifle surprising to say the least. But Mr Tilmann did not say much more.

    The GBA tries to focus on the special character of the UPCA as being an agreement under Art 142EPC, and tries to show that the questions raised have already been decided by the CJEU when dealing with the Spanish complaint or in opinion C 1/09.

    But there only the questions about the relationship between the EPC and the Directives on the Unitary Patent was at stake, not the UPCA as such. It is interesting to note that even the GBA recognises that the CJEU has not decided upon the compatibility of the UPC with EU law, as this was not the question at stake. It only draws this conclusion indirectly!

    It is difficult to follow why on the one side the UPC is an international agreement which has a separate existence and has nothing to do with EU law, but nevertheless prejudicial questions can be addressed to the CJEU. I see a prima facie lack of logic in such a stance. Some explanations from the GBA would be welcome.

    To sum it up, if the German Federal Constitutional Court (GFCC) would have given so little credit to the claim as it is apparently given in the GBA paper, why should it have asked for opinions? That the proponents of the UPC will at any rate try to nip the complaint in the bud should not come as a surprise either. That the GBA and Mr Robinson hope that all other comments will blow in the same horn is not surprising.

    Whether it is common to limit the time a judge might sit in an international court, does not mean that this practice has to be continued. A job at an international court is generally well paid, and the limitation of the term appears rather to be based on the maxim of let others also get a bit of wealth rather than a genuine will to assure continuity and independence.

    Taking as example the Administrative Tribunal of the ILO is not the best one, as we all know that its case law mainly resumes itself in rather formalistic views which have, in general and in my opinion little to do with justice and fairness.

    To make the reappointment of a judge depending on its “performance” is quite shocking. Who decides whether the performance is adequate? If the criterion are public, may be at a pinch. Otherwise not. It is clear that having a Damocles sword over its head is not too reassuring for a judge. It is only in dictatorships or in countries which are not taking separation of powers too seriously that judges can fear for the continuity of their jobs. Does the GBA think it is acceptable what is going on in Poland at the moment?

    That the UPCA itself does not provide for an appeal by a dismissed judge against the dismissal decision, could be a problem, but this problem is belittled in the GBA paper.

    That lawyers can become judges or decide who will become judge is not at stake here. What is missing are clear rules giving a guaranty of absence of conflicts of interest. Where is this guarantee at the UPC? That similar structures can be found in the appointment of honorary judges of the legal profession in Germany is beside the point. They decide about their colleagues, not about cases involving third parties. They are honorary judges, not full time remunerated judges. The same applies mutatis mutandis for the appointment of honorary judges in labour and social justice in Germany. There are least the recruitment is even more diversified.

    What the GBA paper omits to say very clearly is that the nomination of the UPC judges is carried out by the Administrative Committee, not by the Advisory Committee! The latter only makes a proposal. Here is a real problem, be it for the first or the re-appointment. When one thinks about what the Administrative Committee is meant to do, according to some proponents of post-Brexit participation of UK, strong doubts about its integrity are permitted.

    The GBA claims that it is possible for the Administrative Committee to ensure effective legal protection against a dismissal decision without corresponding regulation in the UPCA. On which basis is this allegation made? That the Administrative Tribunal of the International Labour Organisation could play a role with respect to staff disputes is one thing, but such a decision by the Administrative Committee has not even be envisaged. At least Annex I to the UPC is silent is this matter.

    The GBA Paper even admits that UPC judges will obtain less effective legal protection from the Administrative Court of the ILO than a judge in Germany, but this is not really a problem according to the GBA. But everything is fine, isn’t it?

    The interpretation of opinion C 1/09 the GBA is also containing some surprising statements. Contrary to what Tilmann and consorts are claiming, opinion C 1/09 has not decided upon the UPC, but upon EPLA. We find here again the major flaw in the argumentation: on the one hand the UPC is an international court, not part of the judicial system of the member states of the EU, but can ask the CJEU for prejudicial decisions.

    What the opinion of a member of a British lawyers firm has to do in the blog is not understandable at a glance. That he is actually supporting the position of the GBA cannot come as a surprise. The pro-domo plea cannot be overheard. At least he has the honesty not to claim that the UK can stay in after Brexit, as some do. That this might be a different story is a nice euphemism.

    One should also not forget that there are other complaints pending before the GFCC, about the EPO, and the outcome of those complaints, which have been admitted, could at a pinch be an indicator of its position in this matter, although the topics are quite different, but certainly linked.

    Techrights: fingers off! Directly or indirectly, even by a mere link!

    1. Dear “Not really”:

      You say:

      “What the opinion of a member of a British lawyers firm has to do in the blog is not understandable at a glance. That he is actually supporting the position of the GBA cannot come as a surprise. The pro-domo plea cannot be overheard. At least he has the honesty not to claim that the UK can stay in after Brexit, as some do. That this might be a different story is a nice euphemism.”

      To which I reply:

      Why, in your opinion, should British lawyers be forbidden from commenting on this topic? Even if the UPC goes ahead without UK participation after Brexit, British firms will still need to understand its workings and advise clients accordingly, just as we advise them with regard to other major jurisdictions. You will note that I have not commented at all on the merits of the DAV’s submissions.

      I’m not a German constitutional expert and therefore I can take no view on whether or not their position is correct. Indeed, the purpose of this post is, in part, to allow those who are knowledgeable about such matters to comment on the details of their submissions. I am thus rather surprised that you consider my mere reporting of their submissions to be “supporting the position” of the DAV. This is precisely the sort of unhelpful attitude taken by the “Techrights” blog that you (correctly) criticise – i.e. assuming that mere reporting of events and/or commenting on them automatically translates into “support” or “boosting”.

      With regard to the UK position after Brexit, my personal view is that it seems unlikely that the UK can or will remain a member. However, it is clear that there is uncertainty over this, as we have seen from several opinions published by experts from different countries as regular readers of this blog will be aware. The Brexit endgame remains unpredictable, and there is a long tradition of political and legal “fudges” being found at the last minute in international negotiations to make the impossible possible, so we can’t totally rule out the prospect of some sort of solution being found if the political will exists on all sides. And, while the UK remains an EU member, there is nothing in principle to prevent the UK from ratifying the UPCA. So far the Government has not revealed its intentions on this matter, however, hence my choice of wording calling it “another story”. It would be remiss of me not to acknowledge the political uncertainties.

  4. I cannot but agree with Concerned Observer.

    When drafting my comment, I had included a § with a similar content, but decided to drop it, as I thought it was too polemic.

    Here it is:
    With which right is a decision or a procedure before a court in a member state of the EU and of the UPC is criticised? There must be good reasons for the GFCC for doing so, and I would expect for a person working at large in the field of law more respect for a sovereign jurisdiction, not just an “international court”. Would Mr Robinson be happy should the UK Supreme Court be criticised similarly? I strongly doubt it.

    Mr Robinson’s attack against Mr Sterjna is, in my humble opinion, below the belt and reprehensible for this reason alone.

    After the wealth of pro UPC publications on this blog, I could only find very few comments which were blowing in the same horn. The overwhelming majority of comments was negative to very negative. It is to the honour of Kluwer that they are published, as it fosters a legitimate discussion.

    Techrights: fingers off! Directly or indirectly, even by a mere link!

    1. Dear “Not Really”:

      There appears to be a misunderstanding here. I do not criticise the BVerfG. I merely remark upon the fact that a consistent theme of criticism by Stjerna (and indeed others) against the UPC has been an alleged lack of transparency, and yet we are still in the dark as to the precise substance of the complaint (unless we happen to be among the chosen few invited to respond). We know the broad outlines, from reports published on this blog and elsewhere, but as in all legal matters the devil is most assuredly going to be in the detail. The decision of the DAV to publish its own submissions highlights this curious state of affairs. If there is a rule in BVerfG proceedings expressly requiring that the plaintiff’s case be kept confidential, let me know and I will gladly update my post to acknowledge this.

      As for the UK Supreme Court, I would merely note that in the highest-profile recent case of constitutional (and indeed European) significance, namely the so-called “Miller” case regarding Article 50, pleadings from both sides were made available online within hours of their submission by the relevant parties.

  5. Again, as I had asked on a different thread of this blog, how can the complaint be inadmissible if suspending the ratification procedure requires the admissibility of the constitutional complaint challenging it? If it was so clearly inadmissible as some would like to make us believe now, why should the court bother and not throw it out immediately?

    Don’t come with explanations like “The court has not formally decided to stop the ratification.They have (politely) asked the president of the German federation to not sign, as the impact of signing and subsequent declaration of invalidity of the UPCA would be inforseeable…” Utter nonsense and completely ignorant of the underyling legal rationale! To those in the know, it is clear that the whole “suspension request approach” actually serves to avoid the FCC having to grant a preliminary order against a different state power and thus from having to interfere with the constitutional principle of the separation of powers. Had the President objected to the FCC’s request, there can be no doubt that the court would have ordered the suspension.

    1. Dear Nike,

      no, the BundesVerfassungsGericht has not yet formally decided the admissibility.
      Therefore comments in that direction are allowable, and to be welcomed.
      If they do not address all reasons im favour of admissibility, admissibility stands.

      It seems, in my humble opinion, that the BVerfGer judges have prima facie made a preliminary decission, that the case is admissible and has merits.
      But his does not prevent others from bringing arguments against admissibility. Final decission regarding admissibility will only follow later.
      Also, the BVerfGer has in cases of European institutions (previous DG3/EPO cases, European Monetary Union/EURO, European Central Bank, ESFS/EURO, ESM/EURO, ECB and its buying of obligations, …) often decided along political will and practicalities, not always along the strict letter of law. And if all requested comments go in the same direction, chances are they might do so again. Maybe they use this request for opinions to “test the waters” regarding political and public will?

      (And yes, I know that current Bundespräsidenten would never ignore such a request, BUT German history has presidents which did ignore constitutional court requests. Pre-’44… And as current events show, such persons might come to such positions again. Watch Germanies close allies in Eastern Europe, and across the pond…. Germany is not immune to the same witch-hunt against professional/career politicians, which have been lobbied so often, that they subconsciously start ignoring the lobbyists, contrary to politics newcomers which promise to ban lobbyists….)

      We will likely never know.

      1. Francesca, you do not appear to understand what I tried to explain to you. I take that home and stop here. A closing remark: Your statement “And if all requested comments go in the same direction, chances are they might do so again” reveals what the true motivation is behind the inadmissibility spin. And you really think that the FCC is unable to look through this charade? Good luck with this strategy!

        1. Nike, if you were right and the Bundesverfassungsgericht had finally decided the complaint is admissible, it follows that the Bundesverfassungsgerichtwould would have released an order preventing the Federal President from signing it (is that even possible?), because then there would be no room for a “gentleman agreement” between the president and the court. As it stands, the president could simply change his mind any day and sign it into law.

  6. To Mr Robinson,

    I have never said that British lawyers should be forbidden from commenting about the complaint before the FGCC. What was unpleasant is the discrepancy between the title of the blog and its content. It would have been better if the heading was written differently, like for instance: “The view of a British practitioner on the opinion sent by the DAV to the FGCC”.

    For the rest, let’s not play on words. If your input was just meant to comment on the position of the DAV you should not have added the rather sneaky comment about Mr Stjerna. That gave to your input a totally different tone. I am not the only one having found the ad hominem attack not correct.

    That there might be a big difference in procedure between the UK Supreme Court and the FGCC is a matter of fact. Taking this issue to attack Mr Stjerna is a different one. My reproach is that you should not have gone so far without having enquired beforehand about the procedure before the FGCC.

    I have never seen an advance publication about the complaints brought before the FGCC, Only when a decision, either to admit it or to reject it prima facie, one knows the content of the complaint. I only knew originally about the other complaints before the FGCC relating to the working of the Boards of Appeal of the EPO by looking at the file in the EPO register. The complaints were part of statements to the Boards. I could not find anything in advance on the home page of the FGCC. May be I am not clever enough.

    I accept that you consider my comment as being unhelpful. Let’s then may be agree that we disagree, and I have explained above why I am of this opinion.

    I have to give you full credit, that you are the first British lawyer who has acknowledged that post-Brexit remaining of UK in the UPC is a question laden with uncertainty. This is a refreshing view in clear contrast with the position taken by a lot of British lawyers (and not only British ones), especially those having been involved in drafting the RoP of the UPC.

    A far as Techrights is concerned, I maintain that most of the publications by its owner are of a bad, exaggerated and polemic level, which does not help the causes he thinks he defends. By the way, a reference to the book of Derk Visser, embedded in a diatribe against the EPO, has quickly disappeared from the site. This is certainly not a coincidence. I doubt that Derk Visser wishes to be associated with Techrights. So am I.

    Hence, as usual: Techrights fingers off! Directly or indirectly, even by a mere link on the whole publication!!
    Publicly publishing on a blog, be it for good reasons under a pseudo, does not allow you to poach the comments and use them in your blog.

  7. In Germany, by law, third parties can get access to the contents of a court file only if they can demonstrate a “legitimate interest”. The requirements are even higher in proceedings before the FCC, cf. § 35b FCC-Code (“BVerfGG”). In the absence of such interest, there is no access. Unauthorized disclosure by non-parties is subject to sanctions from, e. g., copyright law or professional law.

    This, however, does not say anything about whether a party itself is allowed to publish its own submissions. Although there is – as far as I can see – no legal provision hindering this, the wider implications of such behavior for the court and the proceedings need to be taken into account. As the general confidentiality of the court file serves to allow the court a deliberation of the case free of third party influences, it is a question of tact to leave any disclosure to the court, especially in such high-profile cases. Presently, the court has disclosed what it thought necessary and justified. This needs to be accepted by the parties and the public. I understand that this may be a little unsatisfactory at least in a high-profile case like that in question, but this is the situation.

    Btw, I doubt that anyone standing in the complainant’s shoes would act differently. At least I do not see patent practitioners making public their submissions in court proceedings, not even in the higher profile cases e. g. at the Federal Supreme Court. Why is this? Therefore, this whole discussion is rather weird and unbalanced. But as it has been started by a UK practitioner who is used to a different legal framework, this is probably forgivable. A different matter, however, is the tone applied. I doubt that the author of this post has spoken to the complainant about his motivation which makes raising allegations of the type in question here all the more regrettable.

    1. Thanks, 5 Cents – this is the first constructive reply that I have had!

      From my perspective as an external observer, if there is nothing preventing the complainant himself from publishing the grounds of the challenge, it remains more than a little odd to me that he has not done so, given the prior remarks about lack of transparency and so on. In the absence of clear information about the details of the complaint, speculation and theorising has been allowed to flourish with the regrettably polarising results that we see in the comments here and elsewhere. However, that is clearly his choice, for whatever reason.

      That’s just my opinion and I accept that others may not agree.

      As for making submissions in court proceedings public, this is an interesting contrast between the DE and GB systems. While it’s not necessarily routine to do publish submissions in the English system, any member of the public can nevertheless (generally) obtain copies of documents from the relevant court without needing to demonstrate a “legitimate interest” in the case.

      1. You have just proven that trying to enter into an unbiased discussion with you is futile. You were told what hinders the publication. You just ignore that and jump on the fact that there seems to be no legal obstacle. The fact that you do not want to take notice of what the obstacle is does not make it go away. And you accuse others of applying double standards! Again, did you make contact with the complainant and try to get an explanation before raising your accusations?

        1. There is no legal provision preventing parties publishing their own submissions, as you yourself acknowledge. All else is conjecture, and clearly we take different views on this.

          If the petitioner wishes to respond in public, I am sure that Kluwer will afford him the opportunity.

  8. As a side note: when I look at the “distribution section” listing all the recipients, I can see a lot of them including the “federal association of the music industry”, however there is neither the chamber of patent attorneys, the EPI or even the UPC preparatory comittee although there are argubaly more affected that the music industry.

  9. Concerning the supposed criticism of the BVerfG – which I don’t see in the original post – this foreign practitioner notes that in a free country it’s OK to criticise the judiciary (even if calling them “Enemies of the People” as the Daily Mail did in the UK is taking things a bit far…).

    Anyway, to me it is utterly bonkers that a decision of the democratically elected government can be held up for months without the public even being officially told what the grounds of complaint are; and it is even more bonkers that select individuals or groups are allowed to know (in private) what the grounds are, and provide their comments, in order to influence the proceedings.

    1. I agree – when a law went succesfully through both legislative chambers it must be assumed that it is “the will of the people” that it comes into effect as soon as possible. If it is delayed, there must be maximum transparency. I am very disappointed by both, the Federal President and the Constitutional Court, that they apparently deal with this on the basis of a secret gentlemen’s agreement when the very fundament of democracy – law making – is concerned.

  10. No “must” about it, Peter.

    You know, some countries have a written Constitution and have the quirky belief that The Congress is capable of passing un-Constitutional legislation. It’s that “3 pillars” thing, that “Separation of powers” thing that Englishmen with their “absolute sovereignty of The Parliament” Mantra have such difficulty grasping.

    Which is not to say that opacity is a virtue.

    Although, to my mind, there is something to say in favour of discretion, when the issue before the Supreme Court is the mere admissibility of a complaint, on the fly, by an individual, that something the Bundestag did was un-Constitutional.

    Of course, the court ought not to keep us all waiting indefinitely. That would be damaging to public confidence in both the legislative Branch and the judicial Branch of those good old Three Pillars that define a properly functioning Democracy.

  11. I find it not helpful at all to insist upon requesting publication of the complaint by the complainant.

    If one considers that he has a legitimate interest, then he should address a corresponding request to the FGCC. But it does not mean that is he then allowed to publish the complaint. This has been clearly explained by 5 cents. So, Mr Robinson and Mr Parker, put pen to paper and stop dwelling on the topic. The same applies to “Another non-DE attorney”.

    It is utterly annoying to insist that the complainant should publish its complaint. This is unfair to say the least. The insistence of Mr Robinson shows that he has not understood the difference in procedures between the UK and Germany. That he does not like the complaint is his good right, but he has no right to push the complainant into an action which can only be detrimental to him.

    Be patient, and wait until the FGCC comes up with its decision. Do you in all honestly thinks they are not capable of measuring the political implication of their position and future decision? If you think so, your position is then close to contempt of the court. Quick justice is bad justice, but deferred justice is also bad. The matter is very complex and cannot be decided just by flipping fingers or tossing a coin.

    That waiting for a decision by the FGCC will delay the opening of the UPC, even after March 2019, is a matter of fact. The sooner this fact is accepted by Mr Robinson, Tilmann and consorts, the better they will feel. The publication of the complain will certainly not accelerate the proceedings.

    Techrights: fingers off! Directly or indirectly, even by a mere link on the whole publication!!

  12. I have spotted an interesting admission in the submissions of the DAV:
    “Es entsteht also zunächst ein Bündel nationaler Patentrechte (wie bei einem EP, bei dem ein Antrag auf Vereinheitlichung nicht gestellt wird), bei dem dann aber, wenn dem Antrag auf Vereinheitlichung stattgegeben wird, rückwirkend die internationalrechtlichen Rechtsfolgen der Vereinheitlichung eintreten (EP mit einheitlicher Wirkung, EPeW)”.
    (“Thus, at first a bundle of national patent rights arises (as in an EP where a request for unification is not made), but when the request for unification is granted, the international legal consequences of unification take effect RETROACTIVELY (EP with unitary effect, EPeW).”)

    It has always been a mystery to me how it is possible for new laws (producing new effects) to apply RETROACTIVELY to legal rights arising under old laws. This is a particular problem for the laws of patent infringement, where retroactive application of new laws might suddenly enable a patent proprietor to obtain injunctions (and damages) against third parties conducting activities that, under the old laws, were not protected by the patent in question. Indeed, it seems that the UP Regulation and the UPCA combine to produce EXACTLY this kind of situation, for example due to retroactive expansion of the territories that are relevant for assessing indirect infringement (or to retroactive change of the applicable “Bolar” provision – and hence, potentially, to retroactive removal of exemptions from infringement).

    Surely Germany has rules that prevent this kind of injustice arising, right? If so, does the DAV’s admission point to a further reason why ratification of the UPCA would contravene the Basic Law?

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