“If I listen to [judge rapporteur in the case against the Unified Patent Court Agreement] Peter Huber and the German Constitutional Court (FCC) rules at the end of March, I have the optimistic view the ruling will be a positive one.” Alexander Ramsay, chairman of the UPC Preparatory Committee, has said this in an interview with the JUVE website.

According to Ramsey, the announcement by judge Huber in an MIP interview earlier this month, that the FCC is likely to decide the UPCA case in the first quarter of 2020, is “very good news because it’s fast approaching.”

Ramsey thinks that in case of a dismissal of the complaint against the UPCA ratification, “it would be realistic to expect the UPC to be operational in early 2021”, at least if the “German government then takes the decision to proceed with its ratification of the protocol on provisional application immediately (…)[, which] will run for at least eight months.”

In the period of provisional application the three governing bodies of the court – the administrative, budgetary and advisory committees – will be set up and candidate judges of the UPC court can finally be interviewed. The recruitment process started in 2016 and according to Ramsey, a total of 900 to 1000 people applied for 100 positions (most of them part-time): 50 for legally qualified judges and 50 for technically qualified judges.

About the consequences of the Brexit, Ramsey told JUVE: “The UK has shown quite clearly that it wants to stay in the UPC, and I think there’s a strong political will to try to keep them in.” And even without them, Ramsey said, the “UPC will still be the UPC although it will be one less member state. Of course, there will be things to be done if that should happen. We’ll cross that bridge when we come to it.”

The JUVE interview raises several questions. Firstly, it is not clear what Ramsey’s “optimistic view the ruling will be a positive one” is based on, as judge Huber didn’t say anything about this in the interview with MIP. Apart from that, the German government stated last August it will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear. So Ramsey’s supposition that – in case of a dismissal of the constitutional complaint – Germany will trigger the start of the UPC by ratifying the protocol on provisional application, may reflect an optimistic view as well, but not necessarily a realistic one.


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4 comments

  1. What else can you expect from Mr Ramsay? He has been involved with the UPC from the beginning. If he does not believe in the UPC, who should then, beside the lawyer firms poised to make money with litigation at the UPC?

    That it does not one moment envisage that the decision of the GFCC could be positive for the complainant is also pretty obvious.

    It becomes nevertheless tiring to have to read and hear from the proponents of the UPC how they grasp every straw, as thin as it might be, in order to claim that the UPC has a bright future.

    The future of the UPC appears rather doomed, as in the absence of the UK a key player will be missing. Why do you think US industry would like to see the UK staying in the UPC after the Brexit? Cf. IPKat:

    http://ipkitten.blogspot.com/2019/11/the-real-reason-why-451-page-dossier.html

    One of the bridges to be crossed after Brexit is to see what happens with the London branch of the UPC central division. This is not a decision which can be taken by the administrative committee, in spite of what some proponents claim. It will need a renegotiation of the UPC, as well as a new round of ratifications, and nobody knows presently how it will end.

    If according to the plans of the promoters the UPC would have been in place as early as its promoters hoped, we would be confronted with a fait accompli, which would only be possible to counteract by a decision of the CJEU claiming that the UPC is not conform with EU law. I am not surprised that an opinion of the CJEU has not been requested as it was the case for EPLA, but one can easily think why this has not happened.

    It would be nice if the public at large would not be harassed with such titbits of useless information.

    Techrights: FINGERS OFF!!

  2. We live in a world in which, if the message is repeated often enough, people accept it as the reality. Not all of the people all of the time but, often, enough of the people, to achieve critical mass. This is the world inhabited by the proponents of the UPC. It explains their lobbying the DVG and their tone in press interviews.

    The mystery is why the DVG felt compelled to respond. The House of Windsor had a policy “Never complain. Never explain” which the DVG could sensibly follow. The DVG might find it instructive, to note what happens (think: Andrew) when you depart from this Rule.

  3. it will be the outcome of the complaint which will shape the meaning of the Huber interview in retrospect. Two options:

    1) If the complaint is fully rejected, the Huber interview will mean that a member of the deciding body of the highest German court has disclosed procedural information on a pending case to certain parties not involved in that case but interested in just that outcome, through one of their major mouthpieces. This would put into question not only the legitimacy of the decision, but also the integrity and independence of Mr Huber and of the court as such.

    2) If the complaint is allowed at least in part, the Huber interview will mean that a member of the deciding body of the highest German court displayed his discontent with the obviously unprecedented attempts by certain parties not involved in the case but interested in the complaint’s full rejection, to influence the court’s decision through one of their major mouthpieces. While still unusual, it would be a member of the court defending his and the court’s integrity and independence.

    I’m sure Mr Huber and the court will chose wisely.

  4. Dear Wedge77,

    I am rather for your second option, and not only in part. There are too many problems with the UPC as it stands, especially the possibility to amend an international agreement without a diplomatic conference, or at least only upon request of one of the member states. Where have you seen that before?

    I fail to understand why such an agreement was at all signed and later ratified by so many member states. Either there is a Unitary Patent for all EU member states, or for none. Otherwise it will be a rich man Unitary Patent. That some smaller states have ratified, like Portugal, and will do like Slovenia, is no surprise as they have been lured in with an arbitration chamber.

    After all, the UPC is not a necessity, and facilitating litigation for big companies, especially from outside Europe, is not an aim which needs to pursued, but from the side of those who hope to make the big buck. They will remain nameless.

    I cannot imagine for one moment that the first option is the right one. The future chairman of the FGCC is a lawyer pro-UPC, but he is sitting in the first senate.

    Techrights: FINGERS OFF!!

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