The constitutional complaint holding up the start of the Unified Patent Court will be decided upon in the first quarter of next year. Justice Peter Huber of the German Federal Constitutional Court (FCC), who is overseeing case 2 BvR 739/17, has said this in an exclusive interview with Managing IP.

Huber added that the time frame will depend on the time it takes for him and other judges at the FCC to deliberate on the case. “It is quite a detailed process that we follow because we have to look at every detail of how we formulate and word the [ruling],” he said according to the interview of Managing IP. “But it is likely that we will get along with it.”

In the interview, Huber denied that the FCC has been delaying its decision because of the Brexit. According to Managing IP, he described the allegation as “bullshit”.

The German complaint against the Unified Patent Court Agreement was filed late March 2017 and led to the suspension of the German ratification procedure. This in turn delayed the entry into force of the whole UP system, as Germany is one of the member states that has to ratify before it can start.

If the complaint is dismissed, this doesn’t necessarily mean Germany will immediately complete the ratification procedure, as there is great uncertainty about the consequences for the UP system of the upcoming Brexit. Earlier this year, the German Ministry of Justice 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.’ (see also this post)

If the complaint is admitted by the FCC, considerable delays and even the end of the Unitary Patent project are possible.


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15 comments

  1. I am waiting now for the proponents of the UPC to tell us, that the complaint will be dismissed….

    I have every reason to believe the judge when he say he was incensed with the number of letters pushing him to decide, and one can manifestly say to dismiss the complaint. Lobbying has its limits, and those have been broken a while ago.

    I hope the complaint will be considered admissible and the numerous problems of the UPC will be discussed, and especially its conformity with EU law.

    Techrights: FINGERS OFF!!!!!

  2. I find it regrettable that a judge of Germany’s highest court should use the B word in an interview with a journalist. Competition with the over-touchy, over-reactive Tweeter in the White House is not what I expect from the court.

    Let’s think about it a bit more calmly. Suppose the journalist had avoided inclusion of the provocative word “delay” in their question. So; for example: “Is BREXIT slowing down the process of coming to a judgement?”. Would Judge Huber’s answer to the question thus expressed have been quite so intemperate?

    So I wonder, did MIP deliberately include the provocative word “delay” in order to goad the judge into a response that generates more publicity for MIP or, worse, to give the judge an opportunity to give his court a more edgy presence with the public?

    1. Are you a journalist or publisher? If not, then I don’t think it is a good idea to lecture them on what to include or exclude.

  3. Is it just me, or is the interview provided by Justice Peter Huber highly irregular?

    I am struggling to recall a prior occasion on which a lead judge on a case discussed that case with the media prior to providing their judgement. Whilst the interview arguably only touches upon minor details, it is surely contrary to the interests of justice for a judge to make public pronouncements on ANY matters related to a case prior to final judgement. And to make such pronouncements to the media (instead of directly to the parties to the case) is also most peculiar.

    Perhaps most troubling of all is that Justice Huber is quoted as saying “Brexit is of no concern” to the BVerfG. This could perhaps be interpreted as referring solely to the timing of the BVerfG’s judgement. However, given that the precise legal identity of the UPC (and, therefore, of the Participating States to that court) could well be a crucial issue upon which the BVerfG needs to decide, that statement is careless at best.

  4. In MIP, the by-line below the title of the Huber interview report is “Patrick Wingrove, London”. So was the interview conducted in English or in German. I guess that Judge Huber has good English but is not bi-lingual or an English native speaker. Did Judge Huber give answers in German, later translated by MIP into English, or did he actually give in English his answers to these supremely delicate and controversial matters?

    In particular, his “no concern of mine” answer sounds flippant but I give him the benefit of the doubt. I guess he wanted to say that internal UK politics is no concern of his, his concern being exclusively the DE Constitution and EU law. Dragging the UK into his deliberations is indeed not needed. This year it is the UK. Next year it could be another EU Member State.

    1. “I guess that Judge Huber has good English but is not bi-lingual or an English native speaker.”

      Again, you’re guessing. Do you know him or how good his English is?

  5. I would not necessarily put the blame on judge Müller. Often journalists are very keen to use their own wording when they want to pep-up their message.

    On the other hand, what happens in relation to Brexit is indeed of no interest to the FGCC, and it should not be influenced by it.

    The list of cases to be dealt with is as binding as a contract with the weather service to guarantee rain at a given date at a given hour and at a given place.

    What has been said by judge Müller is certainly a bit odd, but I would not gave any more weight than to acknowledge that he is fed-up by the pressure exerted by certain lobbyist groups.

    Techrights: FINGERS OFF!!!

  6. “I guess he wanted to say that internal UK politics is no concern of his, his concern being exclusively the DE Constitution and EU law.”

    So why did he give his “exclusive” interview to a UK-based IP “penny dreadful” rather than something homegrown and more serious like JUVE ?

    There’s nowt as quare as volk …

    1. Is the main issue here that some are surprised and not happy that this German judge spoke to Managing IP instead of JUVE (a German brand)?

      We live in a free world and a judge or anyone is free to speak to any publication whenever they like and nationality or location shouldn’t matter.

      We are talking about Managing IP here, the most recognised publisher in the world. That magazine has been around since 1990!

      I’ve been following JUVE since it started writing about IP and they’ve recently interviewed foreign judges:

      Swedish judge https://www.juve-patent.com/news-and-stories/people-and-business/we-have-a-challenge-with-the-case-backlog-at-the-boards-of-appeal/

      Two top British judges
      https://www.juve-patent.com/news-and-stories/people-and-business/the-upc-has-the-support-of-uk-judges/

      https://www.juve-patent.com/news-and-stories/people-and-business/its-foreseeable-that-major-connected-cars-cases-will-occur/

      German IP practitioners like and respect both JUVE and Managing IP.

      Everyone should focus on more important things rather than waste precious time over this nonissue.

  7. According to information released by the author it looks that the FCC press spokesman arranged Prof. Huber’s interview with this London lawyer press outlet and that it was conducted on the phone and in English language. As this is indeed an unprecedented move, is there probably more behind this?

    If there is one general judicial rule without an exception, it is that judges do not speak to the press about pending proceedings. All the more, why should a German court deem it necessary to address an English publication and one from which it cannot truly expect unbiased reporting? This has been done for a reason. Is the court so fed up with being molested by certain circles trying to influence its decision and apparently even putting pressure on it? Huber’s words pretty much sound like it. Was this unusual step taken to send these circles a message and do so through a channel which the court can assume to reach most of them, trying to put an end to their lobbying activities?

    I would not be surprised if there was more to this than meets the eye.

  8. Thank you Shatter for your surmises. Could it really be though, that the FCC is such a delicate flower, that it finds lobbying from interested parties so intolerable?

    If so, I have some advice for the precious FCC PR officer. He or she should think herself lucky they aren’t a politician offering themself for election, and being on the receiving end of Twitter storms including plausible threats of murder. This is a serious threat to the future of representative democracy. If you have a family, do you not these days seriously hesitate before offering yourself for election, and then decide not to do it? Perhaps the precious judges could think a bit about that, and the need to give meaningful protection to those standing for election.

    Compared with that, a bit of heckling (about the UPC, of all things) is totally harmless.

    Andrew thought it a bright idea, to give a press interview. This equally cunning Baldrick-ian plan at the FCC looks to me just as misguided as Andrew’s. From the FCC, I expect better.

    But let’s look on the bright side. Perhaps they are neophytes at PR, and will learn something from the experience.

  9. How embarrassing. I thought judges at that level were well-bred (bull***, seriously?) and more astute (talking to the press during ongoing proceedings, seriously?). Mediocrity wherever you look. Europe is going down the tubes, and we can watch it happen.

    1. That’s a red herring. Focus on the substance of the article: expect a decision next year, delay isn’t because of Brexit, and people should stop pestering the court.

  10. Take a random court proceeding at a random court in a random country and ask yourself what would happen if the court started talking in the press to outside supporters of one of the parties whilst the proceedings are still ongoing. Allegations against the court of having an animus against the other party could/would not be raised in one case only. So does this stunt not carry a message deeper than most of the commentators seem to realize?

    1. My reading of this is that Huber is trying to say that the court will decide next year and that people should stop worrying or disturbing them. End of story. Any problem with that?

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