(UPDATES) The European Patent Litigators Association (EPLIT) is the latest of several organisations that have published their view on the constitutional complaint against ratification of the Unified Patent Court Agreement in Germany. The complaint was filed last year by European patent attorney Dr. Ingve Björn Stjerna. The Federal Constitutional Court in Germany requested a series of associations and institutions to submit their views concerning the case before the end of 2017.

The Deutscher Anwaltverein (DAV), a German Bar Association, was the first organisation to publish its comments on 10 January 2018. It said the complaint should be dismissed as inadmissible, or if admitted, should be deemed unfounded. (See this report)

Earlier this week the official Bar Association, Bundesrechtsanwaltskammer (BRAK), published its findings as well (here, German language). Just like the DAV, it concludes the complaint should be dismissed or otherwise be rejected.

The German Association for the Protection of Intellectual Property (GRUR) published its report as well (German language). The GRUR doesn’t discuss the admissibility of Stjerna’s claim: ‘As an association with proven expertise in the field of intellectual property, we limit the present opinion to the specific questions of patent law and related issues’. It states the ‘complainant’s main concerns’: the (in)compatibility of the UPCA with EU law, breach of the requirement for a qualified majority in parliament, lack of independence of the judges of the UPC and the ‘impermissible blanket authorization with regard to procedural costs and their reimbursement’.

All complaints should be rejected, according to the GRUR report. Its conclusion stresses the importance of the Unitary Patent system: ‘While the status quo is characterized by a coexistence of national patents and national shares of the European patent, each of which is subject to national jurisdiction with regard to infringement and legal validity, the future UPCA should provide a solution to decades of harmonization efforts in this field. It seeks to promote consistency of jurisprudence through a European Unified Patent Court, and to provide concerned parties with an instrument to make the enforcement of patent rights more effective and efficient, while protecting the rights of other parties and their options to defend themselves.’

Yesterday the European Patent Litigators Association (EPLIT) became the latest organisation to publish its comments, here. According to a report on its website, ‘EPLIT has worked with Dr Bracher, a lawyer specialized in German constitutional law of the firm Redeker Sellner Dahs, to prepare a submission that has been filed with the Court on 22 December 2017. EPLIT has argued that the complaint should be dismissed.’ EPLIT is working on the English translation, which will be made available ‘in due course’, probably in about week.

According to a spokesman of the Federal Constitutional Court of Germany, seven institutions and associations submitted statements concerning the constitutional complaint, in reply to the request of the FCC: the German government, the EPO, BRAK, DAV, EPLIT, EPLAW and GRUR. In answer to a question by Kluwer IP Law about the court’s position about the publication of the opinions, the spokesman declared: “It’s not unusual that statements were published by the relevant institutions / associations. Generally they do not consult the Federal Constitutional Court before publishing their statements.”

UPDATES 28 and 29 January 2018: The EPLAW told Kluwer IP Law it will publish its opinion on the EPLAW blog shortly. The EPO and the German government will not publish their views.

Concerning a decision date the FCC couldn’t provide new information. ‘A date for decision has not been scheduled yet.’ As long as Germany hasn’t ratified the UPCA, the Unitary Patent system cannot launch.

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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15 comments

  1. It seems to me that BRAK have argued that the UPC is “an organ of the judiciary” (“einem Organ der Judikative”), and that ratification of the UPC Agreement would NOT result in the transfer of jurisdiction to an “intergovernmental body”.

    If I have understood this correctly, does this mean that BRAK view the UPC as being a Benelux-style court common to the EU Member States?

    I think so – though it is a shame that BRAK does not make a clear and unambiguous statement on the legal status of the UPC.

    For example, the term “EU” is conspicuously absent from a later statement made by BRAK (“Das EPatG ist ein gemeinsames Gericht der Vertragsmitgliedsstaaten (Art. 1 Abs. 1 ETGÜ)”). That statement is then followed by the carefully-worded conclusion that the UPC is an “intergovernmental institution” (which would seem to cover both a Benelux-style court and an “international” court).

    Nevertheless, it seems to me that the BVerfG will need to decide whether the UPC is an organ of the German judiciary (that just so happens to also be an organ of the judiciary of other EU Member States) or is instead an international court that is separate from all national judicial structures.

    If it is the latter, then it is irrefutable that ratification of the UPCA would result in a transfer of sovereignty away from the German courts.

    As an aside, I am less than impressed with BRAK’s attempt to assert that there is no “transfer of sovereignty” with respect to the UPC being granted exclusive jurisdiction for EPs having unitary effect… on the grounds that the national courts never had jurisdiction for such patents. However, this overlooks the facts that:
    EP applications that already exist can give rise to EPs having “unitary effect”; and
    unitary effect can only be requested post-grant.

    The national courts will have jurisdiction for the pending applications AND (prior to registration of a request for unitary effect) the granted patents. Registration of a request for unitary effect will transfer that jurisdiction to the UPC. Thus, despite BRAK’s assertion to the contrary, there would be a clear transfer of jurisdiction. The provisions of the UPCA provide for this transfer of jurisdiction, and so it is necessary to consider the constitutionality of that transfer for ALL European Patents (including those having unitary effect).

    1. I am no expert in German constitutional law matters.

      But there is absolutely no doubt that the BRAK submission claims that the UPC is an international court (as you said; see page 16, B.2.A.II.2.c.aa), which will have exclusive jurisdiction due to a transfer of powers from the member states (page 28, C.II.2.b).

      This follows directly from the discussion at the core of the entire submission: the claimed applicability of Art. 24 instead of Art. 23 (lex specialis) of the constitution. If Art. 23 would be applicable, then the German act would have required a 2/3 majority of the possible votes in the parliament. Art. 24 deals with the transfer of powers to international organizations only, whereas Art. 23 relates to the integration in the EU.

      Most of the arguments in the submission are based on the assumption that Art. 24 is applicable therefore. In my view, the better arguments speak for Art. 23 instead, but this is barely discussed (pages 14-16, B.2.A.II.2). Since the UPC is an international body under Art. 24, the submission concludes that there is no relation to EU law in the sense of Art. 23 such that there is also no need for a referral to the Court of Justice of the EU (page 28, C.II.1.b.bb). Consequently, the submission is completely silent regarding the issue of referrals of the UPC to the Court of Justice of the EU as well: EU Law simply does not matter for the complaint according to the submission. Consequently, opinion 1/09 of the Court of Justice of the EU is of no relevance and so the submission does not refer to it (the only reference on page 7, A.III.2.a, is due to the fact that it is referenced in the complaint).

      My impression is that the submission is quite formalistic, selecting arguments in favor of the desired outcome only. There is not much discussion of the pros and cons of many arguments. Especially, if the constitutional court concludes that Art. 23 is applicable, then the entire argumentation of the submission collapses.

      1. Denis,

        I suspect you are right. My initial thoughts were based in part on the following statement by BRAK:
        “Es geht damit nicht um die Übertragung von Hoheitsbefugnissen auf zwischenstaatliche Einrichtungen”
        (“It is NOT a matter of transferring jurisdiction to intergovernmental bodies”).

        However, it is true that this statement is immediately followed by:
        “die die Rechte des Bundestages und damit das Demokratieprinzip berühren”
        (“which affects the rights of the Bundestag and thus the principle of democracy”).

        It is also true that subsequent statements make it plain that BRAK believe that the UPC is, in fact an “intergovernmental body”.

        From this, I am forced to understand BRAK’s initial statement (quoted above) as meaning that jurisdiction is indeed transferred to an intergovernmental body, but that (in BRAK’s view) this does not affect the principle of democracy.

        This leaves me wondering: in what universe does transferring (judicial) rule-making authority to an intergovernmental body that is not subject to any democratic controls (or, indeed, any oversight by democratically-elected officials) NOT affect “the principle of democracy”?

  2. I have not yet read any of the publicized statements as it is clear that they will not deliver the unbiased input hoped for by the court. It should be noted that the BVerfG has already decided that Art. 23 also applies to international organizations supplementing or having close ties to Union law (e. g. decision 2 BvE 4/11, para. 99/100). I wonder how such ties can legitimately be questioned for the UPC with its profound Union law obligations, implemented in the UPCA in the aftermath of Opinion 1/09. Beyond that, the BVerfG has furthermore decided already that Art. 23 also covers the transfer of sovereignty rights to supranational organisations (e. g. decision 2 BvR 2728/13, para. 126). As a consequence, I fail to see how Art. 23 would not be applicable in the present case. The opposing view by BRAK, however, is certainly no surprise and showing what their true mission is.

  3. I am a rather pragmatic person and not an expert in constituional law, but I nevertheless make a prediction: the German constitutional court will not stop the UPC agreement. The reason for my prediction is the following: every major lobby and interest group as well as the governments of Germany and most European countries are in support of UPC. Further, Mr. Stjerna’s complaint seems to be all but a clear cut case, i.e. there appears to be room for the court to make to a decision in either way without clearly and unambiguously breaking the constitution. In other words, it is a matter of interpretation. In addition to that, hardly anyone outside our very small IP echo chamber really cares about it or has strong feelings one way or the other. Accordingly, under these circumstances, I do not believe that the German constitutional court will declare the UPC agreement unconstitutional just because it COULD (but does not have to) to the detriment of all these governments and interest groups.

    1. Peter,

      Perhaps. But that assumes that the BVerfG will not be alarmed by the “democratic deficit” that is so evident in the set-up of the UPC… or even by the Brexit-shaped elephant in the room.

  4. I see that EPLIT is of the view that the UPC is “like the national courts, ‘part of the judicial system of the Union'” (“Es gehört ebenso wie die nationalen Gerichte „zum Gerichtssystem der Union“”).

    That is a very interesting statement indeed. As those in the UK are constantly reminded, the UPC is not an EU court. This much is evident from the fact that the UPC is established by way of an international agreement, and not an EU Treaty or Regulation. So, EPLIT’s statement must mean that they are asserting that the UPC is a court of EU Member States.

    Again, however, there is much skirting around this issue. In an earlier statement, EPLIT assert that “The jurisdiction of the Unified Patent Court for a preliminary ruling under Article 267 TFEU corresponds without restriction to its competence to apply European and national law to ensure unitary patent protection in those Member States which ratify the UPCA”.

    This is a very confusing (or confused?) statement, as there is a conspicuous absence of the term “EU” before the word for “Member States” (“Mitgliedstaaten”).

    It seems that none of those making submissions can have possibly checked whether Article 267 permits an “international court” (comprising non-EU Member States) to make preliminary references to the CJEU. The answer, of course, is that it does not. I am therefore at a complete loss to understand why this issue has not been talked by any of those that have published their submissions… unless, of course, there is a tactical reason for avoiding this “inconvenient truth”.

  5. Parker is right of course, that we patent folk overestimate our importance and influence at the level of Government and Supreme Court. At that level, democracy, the separation of powers, and the Rule of Law count for more.

    Which makes me sceptical whether the lobbyists will prevail. It is not as if i) Europe has no way, at present, to litigate patent disputes, and ii) the UPC is a Cure-All that will eliminate all present deficiencies. Or is it, Peter?

    1. I do not know, MaxDrei, but I do believe that the UPC is more an opportunity than a threat. What I meant with my post above is not that democracy, separation of power and rule of law are not important, but that the constitutional court might not want to apply the strictest constitutional standards in situations where the effect of an “unconstitutionality” is rather mild. I think that they are pragmatic and also see that sometimes different standards may be applied for practical reasons. For example, think about someone appealing an unjustified life sentence and someone appealing a subjectively unjustified mark in an oral examination in some random course at university. In the latter case, even if there is in theory one of the before mentioned principles infringed or potentially affected (Professor is the estranged ex-stepfather of the student holding a grudge against the student), a constitutional court might be more reluctant to accept a case or to come to extreme findings than in a case where someone is “rotting in prison”, simply because the effects and the gravity of the situations are so different. I also think that the constitutional issues relating to the UPC, if they exist (what I am not competent to judge), would have rather mild practical effects on democracy, the separation of powers, and the rule of law.

      1. Peter,

        I do not think that you understand the true nature of the “democratic deficits” in the UPC Agreement.

        Here is a question that might help you to understand: in areas not governed by EU law, what democratic controls does the UPC Agreement impose upon the President of the UPC and the Administrative Committee?

        If the numerous failings of the AC to the EPO have taught us anything, it is that it is impossible to exert any democratic controls over the legislature of a (large) international organisation … even if it has become truly dysfunctional.

        Do we really want to repeat this mistake, especially with a body that will be responsible for the enforcement of patents?

  6. As an American, and as a non-litigator, I have no stake in the outcome. And, granted, I come from a different tradition. However, I am really shocked at how far the submissions from DAK and BRAK go in advocating for the complaint to be refused. Are these organizations not supposed to represent all its members? Isn’t membership required in order to practice? Are there no German attorneys against the UPC? In the US, it is expected that such organizations, unless the issue affects directly the organization itself as a whole, would merely comment on how important the issue is or that it should be may in guidance with certain principles. But to come down fully on one side of the argument and thus against some of its own members is really shocking to me.

    1. @Nostake

      Your shock is understandable.

      It would be in the interests of all concerned (including proponents of the UPC, who have an interest in the UPC being a stable / reliable court) for the Court of Justice of the EU to pre-emptively assess whether the UPC Agreement is compatible with EU law. This can only happen if a constitutional court poses questions to the CJEU prior to the UPCA coming into force. To all intents and purposes, this means that the BVerfG needs to admit the current complaint and then make a preliminary reference to the CJEU.

      So why do the proponents argue for the complaint to be dismissed out of hand? The only reason that I can see is that it has taken so long to get to the current stage and there is a fear that admitting the complaint will destroy the dream of a unitary system (because the whole Unitary Patent Package will then fall down like a house of cards, and it might prove impossible to gain sufficient support for new system).

      To my mind, this kind of reasoning is both astonishing in its recklessness (is there any guarantee that the CJEU will not kill the system anyway?) and lack of optimism (that a suitable replacement can be found). I can understand that those involved in bringing the UPCA to its current state would be disappointed if their efforts did not bear fruit. However, this is no reason to act in haste… especially as there are clear signs that the current system suffers from a number of hugely undesirable (and almost certainly fatal) design flaws.

  7. That bodies representing at large the legal profession in Germany come up with such one sided arguments is not a surprise, as they have a direct interest in having more trade, or at least more money to rake in when working in a multinational, rather than usual in a purely national, environment. Anything which could destroy this hope is to be nipped in the bud, whatever the correctness of the argument may be. Some of the arguments brought forward are as flimsy as those brought forward by Mr Tilmann.

    I fear that the whole discussions in the blog above considers that the question whether the quorum needed for ratifying the UPC is of 2/3 or a simple majority is the one at stake.

    If this would be the case, a mere new vote by the parliament would settle the matter. To me, there is more in the complaint.

    When for instance the German Bar Chamber (BRAK) claims that the UPC does not have the exclusive competence to deal with patent matters due to the opt-out clause, it forgets to conclude that once the opt-out close is no longer there, the UPC will have an exclusive competence. It is somewhat strange to say that since for a length of time the new court will not have exclusive competence, it does not matter on the constitutional level. See pages 29-30 of the BRAK paper.

    That a judge, due to the rather short term of contract, and the possibility that its contract may not be renewed comes into a kind of “latent dependency” is according to BRAK unavoidable. While it is unavoidable, it is not a constitutional problem! That it if the nomination would be for a life time, such a latent dependency would probably not exist, is neither constitutionally nor legally objectionable. See page 34 of the BRAK paper. I wonder what Prof. Broß would say on this.

    Whilst BRAK acknowledges that a judge has no real means at its disposal to complain against a dismissal during his tenure by the Administrative Committee, or against a refusal to renew its contract, it considers this to be of little importance. It merely suggest that in analogy to the situation at the EPO, the ILO-AT should be the forum in which such disputes could be resolved. First there is nothing like that in the UPCA, and secondly knowing how the ILO-AT is working is bordering on cynicism. See page 35 of the BRAK paper.

    The BRAK also claims that a draft of the RoP was presented to the Parliament, and this should be enough as in any case it can be amended by the Administrative Committee. It is clear that it goes in a lot of details, and as acknowledged by BRAK, is more explicit that those of German courts, but this does not mean that a final version of the RoP has been submitted. It makes from a legal point of view a big difference if a decision by a parliament is made on a draft or on a final text of the RoP, even if those can be amended afterwards. The language provisions are an absolute maze, and it is not guaranteed that the language of proceedings before the UPC will be the language in which the patent has been granted. The RoP are so complex and also introduce notions like forced intervention hitherto not known in Germany! See pages 36 pp.

    I would have expected more serious arguments from such a body of public law (Körperschaft des öffentliches Rechtes). Only a few examples of the rather light arguments have been illustrated there, but more can be given.

    That a lot of efforts have been made for a length of time to come to the UPC is not a reason for ignoring some major problems which lie in the UPCA as it stands. Nothing against harmonisation over Europe, but the one which is presently showed down our throats.

    Techrights: finger off! Be it directly or indirectly, even by a mere link!

  8. Yes, but.

    It is very plain to see, that those pushing (lobbying?) for the UPC are influential in the corridors of power, have limitless legal resources and are seriously well-funded. Now consider the man who made the complaint. How much money and influence and legal resources does he have? How effective will he be, in the face of all this, in persuading the court where the public interest lies.

    Those peddling the UPC have their own commercial self-interest. That’s plain to see. But so does the Complainant, no?

    The Commission and the Davos crowd have been misled into supposing that the current patent litigation model in Europe is broken. So they suppose that global businesses need the UPC to consolidate their dominance in Europe, and are lobbying for it, democratic deficit regardless. They have won in Brussels and now expect to win in court. But Europe can survive without pandering any more to the global titans. It used to be said that what’s good for General Motors is good for the USA. Not any more.

    Seems to me that all supra-national bodies are out of control (UN, FIFA, EPO). Does it matter if the UPC is too? Courts are supposed to be outside the control of the politicians and the civil servants, aren’t they?

    Just at the moment, there is far too much democratic deficit to be seen, wherever one looks. Not a good moment to add to it. Europe is the cradle of democracy and the Rule of Law, and should continue to be loyal to its core values.

  9. I would not say as Peter Parker thinks, that the UPC is less a threat than an opportunity. It all depends for which it is an opportunity. Certainly not for European industry at large, as less than a third of applications at the EPO are stemming from EU member states. And even less European SMEs. Who needs a patent in 26 EU countries? Look simply at the average number of validations of granted EP. It is not easy to picture who will benefit from the whole thing. This is the more so since forum shopping is not completely excluded by the UPC.

    Why do we need judges? Simply because the law cannot foresee all possible situations and the law has to be applied even in situations which lie between the paragraphs. What Peter Parker has said when comparing the situation of a candidate to an exam with a person rotting in prison gives a false impression of the problems at stake. One problem has not less value than the other one. As far as independence of the justice, fairness of process, equality of chances are concerned both have the same value when it comes to fundamental rights. And those are not guaranteed with the UPC.

    When you realise how the RoP have been drafted, serious doubts arise. Just one example: when it comes to patent attorneys which do not have a litigator’s certificate, the RoP do not contradict the UPCA but empty it from its substance.
    According to Art 48(4) UPCA “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” So far so good. When you look at the RoP the story is different.
    According to R 292.2 UPC “Such 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”.
    At the discretion of the court might not mean never, but more than once in a blue moon this will not be the case. This has also to be seen in relation with R 113.3 UPC according to which “The presiding judge may, after consulting the panel, limit a party’s oral submissions if the panel is sufficiently informed”.

    The problem underlying the present difficulties comes from the fact that all proponents of the UPC have carefully avoided bringing the case before the CJEU for it to give an opinion as it was done for EPLA in C 1/09. I do not consider that this refusal is innocent as it has been refused for the similar flimsy reasons given now for considering the claim before the GFCC not even admissible. All those people have an interest for this question not to be asked, as it could deal a lethal blow to the UPC.

    When one sees that apparently the GFCC has extended the time for filing amicus curiae for a month in order for the German parliament to deliver an opinion, I am far of thinking that the complaint might be dismissed for formal reasons.

    A last difficulty lies in the fact that before the UPC, as well as before the EPO, there is no revision possible as to the correct application of the law. This is however the case in all member states of the EU, where there is court like the French Cour de Cassation or the BGH. In the UPC there is a possibility to defer according to R 238A UPC which compares to Art 112 EPC, and, like at the EPO it is reserved to a panel/board. The same goes for the application for rehearing according to R 245 UPC which compares to a petition for review under Art 112a EPC. In both cases an obligation to raise objections has been introduced, R 248 UPC or R 106 EPC.

    The absence of a possibility of revision other than for procedural reasons represents to me a fundamental democratic deficit.

    I hope that the GFCC will admit the complaint and put the problem in front of the CJEU.

    Techrigts: fingers off! Be it directly or indirectly, even by means of a link!

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