Even if the German constitutional complaint against the Unified Patent Court Agreement is dismissed, the German government will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear.

The German Justice Ministry made this clear in answer to questions of parliament. In a letter earlier this month it stated: ‘The issue of the withdrawal of the United Kingdom from the European Union (so-called Brexit) and its implications for European patent reform play an important role in the further implementation process of the Unified Patent Court Agreement. The real and legal implications of withdrawing must be examined with regard to the Agreement and agreed at European level. This opinion forming is currently not finalized, not least because significant factors of the expected exit are not yet known.’ (Drucksache 19/12106)

Questions (1 and 2) and answer in the original, German version:

  1. Welche Auswirkungen hat nach Ansicht der Bundesregierung der bevorstehende Austritt Großbritanniens aus der Europäischen Union auf das Übereinkommen über ein Einheitliches Patentgericht?
  2. Hat die Bundesregierung bereits für den Fall, dass Großbritannien die Europäische Union verlässt und eine Ratifizierung des Übereinkommens in der aktuellen Form nicht mehr möglich ist, ein weiteres Vorgehen geplant? Wenn ja, wie sieht dieses weitere Vorgehen aus?

Die Fragen 1 und 2 werden wegen des Sachzusammenhanges gemeinsam beantwortet. Die Frage des Austritts des Vereinigten Königreiches aus der Europäischen Union (sogenannter Brexit) und dessen Auswirkungen auf die europäische Patentreform spielen eine wichtige Rolle beim weiteren Implementierungsprozess des Übereinkommens über ein Einheitliches Patentgericht. Es müssen die tatsächlichen und rechtlichen Auswirkungen eines Austrittes im Hinblick auf das Übereinkommen geprüft und auf europäischer Ebene abgestimmt werden. Diese Meinungsbildung ist derzeit noch nicht abgeschlossen, nicht zuletzt weil wesentliche Faktoren des voraussichtlichen Austritts derzeit noch nicht bekannt sind.

So far, the German government had been reluctant to say anything about the influence of the Brexit on its owns decisions regarding the UP project. As this blog reported in November 2018, when pressed to explain what will happen if the constitutional complaint is dismissed and Germany is free to complete the ratification of the UPCA, a government spokesman only said: ‘We will deal with the ratification in a responsible fashion. The parameters have to be clear.’

Four grounds

Both chambers of the German parliament had already given their support to the UPCA when the ratification procedure was put on hold in March 2017 because of the complaint filed by patent attorney Ingve Björn Stjerna with the German Federal Constitutional Court. Stjerna’s claim that the UPCA is unconstitutional is based on four grounds, according to the FCC (see this post of the Kluwer Patent Blog, among others):

‘In terms of substance, plaintiff is essentially asserting a breach of the limits to surrendering sovereignty that are derived from the right to democracy (Art. 38 (1), clause 1, Basic Law). Primarily the following violations are asserted:

  • breach of the requirement for a qualified majority arising from Art. 23 (1), sentence 3, in conjunction with Art. 79 (2) Basic Law;
  • democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC;
  • the judges of the UPC are not independent nor do they have democratic legitimacy;
  • breach of the principle of openness towards European law owing to alleged irreconcilability of the UPC with Union law.’

The Stjerna complaint has led to years of delay for the Unitary Patent system and could – if admitted – even derail it altogether. The future of the system (covering up to 25 European countries) had already been complicated by the outcome of the Brexit referendum of 23 June 2016, as the UP system was widely considered as a project for EU member states only. Since, the UK government and supporters of the UP system have argued the UK will be able to participate post-Brexit, but this is by no means certain.

The Federal Constitutional Court in Germany is expected to decide about the Stjerna complaint later this year or possibly at the start of 2020, as is more likely according to a recent article of Fish & Richardson: ‘The Constitutional Court case is (…) now scheduled for decision in 2019, but that schedule is not binding. Announcement of the date for oral argument, perhaps within a few months from now, will be the best indication of the decision date, because it must be handed down within three months after the oral hearing. Given the August holidays, it seems most likely the decision will be in early 2020.’

The German parliamentary questions were aimed primarily at the costs of the UPC and Germany’s contribution to its funding. According to the letter of the Ministry of Justice, the most important contribution of Germany so far – 543 981 euro – went to the creation of the new IT system for the UPC, which has ‘almost been completed’.


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9 comments

  1. The position taken by the German government is very reasonable, and one can only approve the first comment.

    It should not be criticised as has been stated recently in Lexology which disclosed a rather worrying comment according to which the President of the Republic ought to swiftly sign the ratification act as it had been accepted by parliament. This is just one of the questions in the complaint before the German Federal Constitutional Court. It is really wise to await Brexit and the decision of the FGCC.

    But before a decision on the UPC is to be given, there are a few complaints about the EPO and the independence of its Boards of Appeal to be decided by the FGCC.

    One important question to be answered is: are the members of the Boards of Appeal truly independent or not?

    When one sees what happened with the member who was faced with the interdiction of entering the premises of the EPO and de facto relieving him of his duties is not encouraging. The more so in view of the pressure exerted to the Enlarged Board of Appeal who was bluntly asked to rubber stamp a decision of the President. The changes made to the Implementing Regulations of the EPO might have improved the “perception” of their independence, but not the actual independence.

    Another important aspect is the fact that members of the Boards of Appel are only appointed for a given period of time, and that the criterion for their reappointment are not public. In view of the changes introduced at the whim of the former president of the EPO, members can only be reappointed when they have shown an appropriate performance. What is considered an appropriate performance? Nobody knows. In the past there has never been a Board member which was not reappointed.

    In this respect it should be remembered that the same chamber of the GFCC had decided in 2018 that judges could be appointed for a given length of time, but under two conditions: they should be civil servants appointed for life and they cannot be reappointed. If the 2d chamber of the FGCC is not completely ignoring its own case law, one should expect a similar stance to be adopted in the case of the EPO and of the UPC, the only difference between the two being a different length of appointment (5 years at the EPO, 6 years at the UPC). At UPC as well, the criteria for reappointment are unknown.

    There is another problem with the UPC. According to Art 10 of the Statute, a UPC judge can be removed from duty by a decision of the Presidium of the UPC, but according to the same statute, there is no means of redress offered to a judge which has been removed from duty. I have strong doubts that in view of this provision alone the independence of a UPC judge is guaranteed. How could such a statute ever be ratified?

    Although not being in the UPC Agreement itself, but in the Rules of Procedure, which were not part of the ratification process, there is a provision called forced intervention. It means that a judgement of the UPC can be applicable to a third party which has not been heard during the actual procedure. A third party can be invited to intervene, can decline the invitation and still be subject to the measures decided by the UPC. I have doubts that such a measure is constitutional in a lot of contracting states of the UPC.

    In any case the RoP have been devised by a select club the members which were all co-opted. By pure coincidence the members of this select club are the most prominent supporters of the UPC and wish that it comes into force as soon as possible. I do not have to give names, they are well known in the profession.

    The more time goes by, the more it is not possible to refrain from thinking that the UPC had to be driven through at any rate and at any cost so that a “fait accompli” was created and there was no way back possible.

    May be one day we will be grateful for the Brexit and the complaint before the FGCC so that we were preserved from a piece of work which could show to be very harmful for Europe’s industry. As barely a third of the European patents stem from member states of the EU, it is easy to think who will be the prime beneficiaries of the UPC. Certainly not European industry and even less European SMEs, contrary to what is heralded here and there.

    Techrights: FINGERS OFF!!! Directly or indirectly, even in the form of a link to this blog.

  2. @Attentive Observer:
    while I agree with your analysis, your last demand is making my head hurt.

    While I’, no fan of the way techrights reports the EPO cases, I doubt you can request in the name of Kluwer to refrain from linking to the Kluwerblog.
    This is not how the Internet works.
    You can ask Techrights to not link to your reply, but you cannot in the name of others demand to not link to the blog as a whole, nor for the author to not link to a post.

  3. It is the behavior of Techrights which led to my position. It has happened that in order to circumvent my request not to be cited, the whole blog was linked.

    I understand your point an even agree with it, would it not be the pernicious way contributions are misused in order to bring his conspiration theories forward.

    I will nevertheless limit my interdiction to my own comments.

    It is not that Techrights does not sometimes have good information to tell, but it is always clad in such a way, that the form negates the effect of the information given.

    We do not need a constant rant against the EPO granting patents against the EPC. The more since it is not the case!

    That the UPC is not really good for Europe is a matter of fact, but not for those who thought the could fill their pockets. But the way this question is dealt with by Techrights is not the best way.

  4. I think that this means that the UPCA in its current form is dead. I would have liked to see it starting ASAP as we need this if we are serious about European integration. Maybe the next try to achieve this should start from the EU and use the existing European judical branch as a basis. It seems easier to add a “EU Patent Senate/Chamber” to the CJEU etc ,as it appears that they are all well within the member states’ constitutions. Further benefit is that this court could also deal with design and trademark matters.

  5. I wonder where Peter Parker’s tongue was, relative to his cheek, when he wrote that comment. Once the perennially odd-man-out, English-law UK has departed the civil-law EU, and notwithstanding the ongoing membership of the Republic of Ireland, the way will be clear for all sorts of fresh initiatives to reform supra-national EU law.

    But whether that could lead to the CJEU hearing appeals on the substantive law of patent validity, I have no idea. Given its efforts on the law of trademarks within the EU, I’m not sure anyway that it would be a good thing. Me, I prefer the friendly competition between the Judges of GB, NL and DE, when it comes to interpreting the legal provisions of the EPC. That’s the better way to raise quality, in my opinion.

  6. “Me, I prefer the friendly competition between the Judges of GB, NL and DE, when it comes to interpreting the legal provisions of the EPC.”

    I hope that was also tongue-in-cheek, MaxDrei, because the other 35 contracting states would have something to say about being left out of that “competition”. Not that competition, friendly or otherwise, between judiciaries is necessarily a good thing either…

  7. While I agree with peter Parker that more integration is necessary on an EU level, this is currently politically impossible. Italy, Hungary, Poland, and the United Kingdom see to that. While the Brexit may get us rid of one of those anti-EU polemics (and I was against a prolongation beyond the EU elections for several reasons), the others demand reforms, but their reform proposals amount to a more egocentrical redistribution of EU budget, while also paying less into it .
    I fear we might need to scrap the EU and found a second one, hopefully with a real parliament this time, and less influence for member states and the representatives of their governments. Alas, most national constitutions stand in the way of de-powering the national assemblies in favour of a central Europan one.

    We might need to abolish the national constitutions through adopting one central pan-European one.
    But I fear the only one with the power to do that currently is Vladimir Putin.

  8. One should not forget that there was an attempt to have a supranational jurisdiction for patent disputes for all member states of the EPC. It was called EPLA and was an open treaty like the EPC.

    This attempt was killed in the bud and led eventually to the UPC. Has Peter Parker forgot Opinion C 1/09? Not invented here and not conform to EU law.

    On the other hand, it was clear that beside the possibility to answer prejudicial questions, which is an absolute necessity should a treaty be in accordance with Union law, the CJEU should be kept out from the appreciation of substantive patent law. Peter Parker’s proposal is not at all in line with the UPCA and this aim. On the other hand the CJEU has never said that it would not at substantive patent law and its interpretation.

    A big mistake by the promoters has been not to ask the CJEU what it holds from the UPC. One wonders why? It is merely claimed that it is conform to Union law, but the proof of it has never been served.

    European integration is certainly a worthwhile aim, but only if the inconvenience is not larger than the advantage of it. Ever heard of subsidiarity? The Luxembourg convention was dead borne and I am not convinced that the UPC has correctly and fully avoided its drawbacks like forum shopping or the language problem.

    I have to agree with Max Drei that the present configuration is much better and a healthy competition is better than an unifying action based on the smallest common denominator.

    A good way of having more integration is to bring more regularly judges dealing with IP together. After all, all member states of the EPC have the same law as basis. The difference lies more in the national traditions. Whilst those were quickly wiped out at the EPO and its Boards of Appeal, it takes longer at the national level. With the exhaustion of patent rights, the CJEU created a very good tool against fragmentation of the market. Do we really need more?

    How many cases warrant actions in all member states of the EU? Probably les than a handful. One good example is the famous pemetrexed case. Even there not all jurisdictions have followed the decision of the U.K. Supreme Court. See the recent decision of the District Court in The Hague. And it is good so.

    The creation of the UPC will make it easier for non-EU member states to attack European industry and SMEs. I fear that this thought has never crossed the mind of all the promoters of the UPC who seemed primarily more interested in making even more money as presently.

    TECRIGHTS: Fingers off!!! Directly or indirectly!

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