Alle Jahre wieder” (Every year) is the title of one of the most popular German Christmas songs. And alle Jahre wieder / every year there is advent time, which seems to be the perfect time for the invocation of the immediately imminent advent of the Unified Patent Court (UPC). MIP made the start with its famous „bullshit“ telephone interview of Justice Prof. Huber, as reported here, which announced a decision on the German constitutional complaint in early 2020, followed by JuVe’s interview with Alexander Ramsay, who announced the possible start of the UPCA in early 2021. Whether the UK will by then still be a member state of the European Union remains to be seen, but who cares? Only pedants like me seem to wonder whether Article 1 UPCA may perhaps stand in the way of the UK post Brexit becoming or staying a member in the UPCA:

The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States.

Yet perhaps it is possible that a court “common to the Contracting Member States” may also be common to the Contracting Member States and the UK, at least if and when the UK accepts that it is “subject to the same obligations under Union law as any national court of the Contracting Member States” to the extent that patents are concerned. And in any case, there is no doubt that where there is a political will, there will be a way. A report by the Policy Department for Citizens’ Rights and Constitutional Affairs, which was commissioned by the JURI committee of the European Parliament also came to the conclusion that „it seems not per se legally impossible that the UK can stay within the UPCA, even when not an EU Member State“. Of course, there are some ifs and buts, but the big message of this opinion work is clear – nothing is impossible.

But would a UPC including judges from non-member states, domiciled in part outside the EU and established by an international treaty not again be “an international court which is outside the institutional and judicial framework of the European Union” which the CJEU rejected in its opinion C1/09? Well, let’s leave this question for another day and consider instead the (political) realities of the day.

It seems to me that all adamant supporters of the UK’s participation in the UPCA should now better be busy canvassing for their respective most promising local candidate of Labour, LibDem, SNP or the Green party to avoid the worst, and I have no doubt that many of them will. But if they are unable to convince the majority of their countrymen that Brexit is not such a great idea and the Conservatives win the general election in December, then the odds are indeed that the UK will leave the EU on 31.1.2020. Which means, at least in my view, that the UPCA would have to be amended in order to allow the UK to still become (or stay) a member. Even Margot Fröhlinger, who can certainly not be accused of being overly UPCA-sceptic, conceded that much, and the literal wording of Article 1 leaves no other option, as I think.

Articles 20 and 21 and some of the recitals to the UPCA are also of interest, e.g. the following ones:

RECALLING the primacy of Union law, which includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the general principles of Union law as developed by the Court of Justice of the European Union, and in particular the right to an effective remedy before a tribunal and a fair and public hearing within a reasonable time by an independent and impartial tribunal, the case law of the Court of Justice of the European Union and secondary Union law;
CONSIDERING that this Agreement should be open to accession by any Member State of the European Union; Member States which have decided not to participate in the enhanced cooperation in the area of the creation of unitary patent protection may participate in this Agreement in respect of European patents granted for their respective territory;

I still find it very difficult to believe that the UK can and will at the same time exit the EU and still “recognize the primacy of Union law, including the TEU, the TFEU etc. etc.” at least to the extent that the UPC is about to apply it. And I find it likewise not very likely that the EU and the CJEU will accept that in future British (i.e. non-EU) judges should be permitted to decide about the interpretation of EU law (note that the UPCA will also have to apply Union law directly, such as the regulation on the EP-UE, the SPC regulation etc). As last year around the same time, I remain on the skeptical side.

Thus, I am afraid I must continue to pour some water in the wine of the notorious optimists and proponents of the soon-to-become-reality UPCA. In my opinion, both the UK and the EU27 must first define their political positions about a permanent membership of the UK in the UPCA.

As regards the EU, even the research paper requested by the European Parliament’s Committee on Legal Affairs and commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs bluntly acknowledges this in Section 3.2:

The position of the European Council and the contracting Member States of the UPCA on the possibility to cooperate with the UK in the framework of the UPCA is not known. One can only guess that the willingness of the Heads of State and Government will depend on the outcome of the negotiations on the Brexit.

Well, this could be interesting. And might well take a few more years.

As regards the UK, the auspices of a permanent membership in the UPCA even after the “implementation period” are likewise pretty cloudy, not to say gloomy. According to a recently leaked Fourth UK-US TIWG Readout from negotiations within a UK-US Trade and Investment Working Group from June 2018, to which representatives of the UKIPO and the USPTO attended, the following seems to be the situation:

Thus, the UK intends to stay part of the UPCA during the “implementation” (transition) period, which ends on 31.12.2020 according to the currently agreed version of the UK Withdrawal Agreement. But what will happen thereafter? Beyond this is subject to negotiations does not sound to me like a very strong commitment. And who knows which surprises the UK-US negotiations about a much desired Free Trade Agreement will still bring us. In view thereof, would it really be sensible for Germany to ratify the UPCA in early 2020, provided that the Federal Constitutional Court dismisses the constitutional complaint? In this case, the Mr. Ramsay and the UPC Preparatory Committee would resume its preparations, judges, including judges from the UK, would be appointed etc. – and just about when the court is ready, the UK might (have to) exit the UPCA again, namely if the “negotiations” alluded to by the UK representative fail. And then we have the salad.

I consider that it is exactly such a nightmare scenario that has prompted the German Ministry of Justice to state that Germany will ratify the UPCA “in a responsible fashion”. Which can only mean that we first need clarity about the political will in regard to the UPC from both the EU side and the UK side post Brexit (if Brexit happens at all – hope dies last), before Germany will (or at least) should deposit its instrument of ratification. Any other procedure would be pretty hazardous.

Therefore, I would now be bold enough to dare bet that the new Berlin airport will open before the UPCA enters into force. Just to recap: The opening of the BER airport was originally foreseen for 2011, which date has meanwhile shifted to 31.10.2020. Conversely, the UPCA was signed on 19 February 2013, thus I would not be surprised if we were to see the UPC’s opening around 2022, perhaps even later. It might still open earlier than Stuttgart 21, though, if this is a consolation for any one. The opening of Stuttgart 21 was originally planned for 2019, which date first shifted to 2021 and now to 2025.

The upshot of all of this that major infrastructure projects seem to take time, at least in Germany. Thus, JuVe’s punchy headline “wheels in motion for the UPC” may very well be premature by a few years, even if one ignores for a moment the astonishing fact that quite a lot of the UPC supporters seem to be pretty certain how the Federal Constitutional Court will decide on this appeal. I find this a bit patronizing and tend more towards an open wait-and-see attitude.

With this, relax and enjoy your advent.


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9 comments

  1. Thorsten – thank you for another well balanced article on the UPC.

    It is sad to say that the UPC is a topic upon which one hardly ever sees balanced reporting. Without wanting to be too cynical, I have noticed that an awful lot of the “unbalanced” (ie speculative and/or presumptuous) reporting derives from quarters that have a direct financial interest in the success of the UPC project. Whilst this is perhaps to be expected, I find it extremely disheartening that those outside of such quarters (including individuals and organisations that only really have an enthusiasm for the IDEA of a unitary patent and court) tend not to recognise the “unbalanced” reporting for what it is. For example, my experience is that wildly optimistic (and presumptuous) predictions regarding the timing and content of the BVerfG’s ruling on the constitutional complaint have largely been reported / accepted without even the slightest suggestion of a raised eyebrow.

    Looking back on earlier UPC-related articles on this blog, it strikes me that the strategy adopted by UPC proponents has been remarkably similar to tactics adopted by many modern politicians: namely, keep going with arguments that suit your cause even in the face of developments and/or overwhelming evidence which mean that your arguments do not hold water. The main argument that I am thinking of here is the alleged ability of the UK to participate in the UPC post-Brexit… where is has long been evident to me that the proponents of the UPC simply have no answer to questions relating to compliance with EU law (and, in particular, Article 267 TFEU and the principle of sincere cooperation). Given the refusal to engage with such questions, despite the alarming implications of those questions for the viability of the UPC system, I can only conclude that the strategy adopted by UPC proponents aims not at winning hearts and minds but instead at establishing a fait accompli that they hope the CJEU will be reluctant to dismantle… irrespective of the threats posed by the UPC to the integrity of the EU legal order.

    Perhaps I can inject a note of realism here.

    Firstly, the BVerfG has not yet decided the four EPO-related cases that have a higher rank in the 2019 list of cases to be decided by the 2nd senate. All of those cases were listed for decision in 2017 and 2018 (and two were listed for decision in 2016). Given their relevance to the case relating to the UPC, it would make sense for the BVerfG to decide the EPO-related cases first. Since 2016, of the cases assigned to Dr Huber, only between one and three appearing on the preview for a particular year have been decided in that year. Assuming that the BVerfG will decide the cases in a logical order, and at its customary rate, it is reasonable to conclude that even the prediction of someone as well informed as Dr Huber should be taken with a pinch of salt (ie as perhaps more of an optimistic than a realistic prediction). Thus, a decision within the first quarter of 2020 cannot be guaranteed.

    Secondly, if Mr Johnson secures a majority in Parliament, it is safe to say that he is very unlikely to request either a further extension to the Article 50 deadline OR an extension of the “implementation period”. In practical terms, this outcome would significantly increase the likelihood of a “no-deal” Brexit, either in February 2020 or January 2021.

    Especially given the glacial pace of the BVerfG, as well as the current position of the German government, does anyone seriously believe that the UPC will be up-and-running BEFORE January 2021? Last I checked, not even Mr Ramsey was that optimistic (http://patentblog.kluweriplaw.com/2019/11/28/if-german-complaint-is-dismissed-unified-patent-court-could-be-operation-early-2021/).

    Thus, upon a realistic assessment, the chances of the UPC ever opening for business are not as high as some might (still!) be trying to lead us to believe. However, as you note, it seems that only pedants such as you and I worry about the legality of retaining the UK in the UPC system post-Brexit. I can therefore make a prediction relating to the UPC in which I have almost 100% confidence … namely, unless and until the constitutional complaint is upheld, the majority of the patent profession in Europe will continue to hold an unrealistic view on the prospects for the UPC. I await with interest to establish whether this prediction proves to be accurate.

    1. I find it surprising that the UPC has attracted so much more attention than the four EPO-related cases before the BVerfG – the result of these cases could have a far greater impact on out profession than the UPC-related case.

      1. In my view, the answer to your question is that, in a large part, this is due to complacency that is based upon the assumption that the BVerfG will hesitate to reach a conclusion that could force Germany to exit such a long-established (and deeply embedded) international treaty as the EPC.

        There may well be an element of truth in that assumption. However, whilst I do not claim any familiarity with constitutional law in Germany, it appears to me that another possible outcome is that the BVerfG’s ruling requires the German government to negotiate amendments to the EPC … which amendments could have significant effects. For this reason alone, I believe that it would be unwise to assume that none of the complaints in the EPO-related cases will be upheld.

        Moreover, we already have examples of the independence of the EPO’s “judiciary” being compromised (in the Corcoran case, twice). Also, the Enlarged Board of Appeal is currently pondering a case (G 3/19) where the eventual ruling will provide direct evidence on the question of whether the EBA remains truly independent of the EPO’s President and Administrative Council. Given the (potential) breaches of the rule of law at the EPO in these cases, it seems to me that the BVerfG could well be justified in upholding at least some of the constitutional complaints relating to the EPO. Whether they will go as far as finding the current structure of the EPO unconstitutional remains to be seen … but it appears that there is no room for complacency on this point.

  2. By the rivers of Karlsruhe we sat and wept
    when we remembered the UPC.
    There on the beeches
    we hung our harps,
    for there Mr Stjerna asked us for songs,
    our tormentor demanded songs of joy;
    he said, “Sing me one of the songs of the unified patent!”
    How can we sing the songs of the Court
    while Aldgate Tower is empty?
    If I forget you, Luxembourg,
    may my right hand forget its skill.
    May my tongue cling to the roof of my mouth
    if I do not remember you,
    if I do not consider the UPC
    my highest joy.

  3. Thank you Thorsten, and that concerned Observer, for your “balanced” observations. But who cares, in these “interesting times” in which we are living, for balance. Indeed, these days, what does “balance” mean?

    You would say, wouldn’t you, that good old Auntie BBC cares about “balance”. After all, the founders of the BBC set it up, not only to entertain but also to educate and inform. Trouble is, for the BBC, “balance” is accomplished all too easily, simply by giving as much air time to each side of the argument. So, give a climate denier with zero grasp of the scientific method just as much time to speak as a world expert climate scientist. Give as much time to a proponent of homeopathic medicine, again with zero scientific training, as to an expert scientist from the world of evidence-based medicine. So we see, if you want to get seriously rich, fabricate a false argument, get it up and running, and even the deeply trusted and exhaustively moderated BBC will give you as much time to spout nonsense as the experts who tell it how it really is.

    Politics in England today is practised in an atmosphere in which “the public has had enough of experts”. I await with interest for the proponents of the UPC to roll out (aimed at those who shall decide the fate of the UPC) their next seductive sound-bite that will fool most of todays incompetent deciders most of the time, namely “Get UPC Done”.

  4. The latest bout of wishful thinking about the UPC uttered by its proponents reminds me of a Tibetan windmill, but in the absence of wind. At best a very weak unsteady breeze has taken life, and for all the proponents of the UPC the carousel starts turning wildly pushed by the expectation of filling one’s own pockets so that they can become deeper and deeper.

    It is amazing to see people one would consider sensible, coming up with the wildest expectations as to the entry in force of the UPC. Please wake up, the situation is by no means clear, and it is not because Prof. Huber said that a decision could come in 2020 that the decision will be dismissal of the complaint. My feeling is that it could be much more disheartening for all the proponents of the UPC. I hope the decision will be to have the UPC conformity checked against not only EU law, but against the German Constitution.

    Does anyone seriously think that the intermezzo having stalled the whole ratification process in Germany was just because a ranting lawyer of Düsseldorf has brought forward some stupid questions which only deserve to be ignored?

    How can an international agreement be amended by an administrative committee and the members states only be given a veto right afterwards, cf. Art 87(3) UPC? Even the ultimate question is no resolved: what if a country refuses to agree on the changes after the Review conference? Will it be forced to accept them or be expelled like it would be the case with the EPC, cf. Art 172(4) EPC. The wildest theories have come up in application of this provision when a solution had to be found to keep post Brexit UK in the UPC.

    How can a judge be dismissed without offering him ab initio a possibility of having this decision challenged before an independent court?

    How can it be that a third party, not having taken part, and even refused to take part to the procedure before the UPC can be bound by a decision of the latter, cf. R 316 RPUPC?

    How can a judge be a part-time judge? This is clearly envisaged should the UPC ever start. That a UPC judge can deport himself is not enough.

    Those very important points have never been discussed, and a deadly silence has installed itself. Let’s make a fait accompli, we shall then say that it works. And if it does not work, never mind, nobody will dare go back, and we can continue to fill our pockets.

    When one reads, cf. Lexology of today that the “Unitary Patent system aims to provide easier and affordable access to effective patent protection in Europe”, it is difficult to refrain a snigger. It will be good for the big players, not for the SMEs. The Chairman of Business Europe does not get tired to say that the (big) industry needs the UPC. And all the non-European patent owners (2/3 of the granted patents) are eagerly awaiting to use the UPC. Those are the entities, with all their lawyers, who will be the big winners should the UPC come into life.

    Nothing against attempting to unify case law over Europe, but to me the UPC is the worst instrument for this, as it can up with decisions which go against decisions of the Boards of Appeal of the EPO when it comes to validity. And then? Hence it is necessary to deal with the problems relating to the independence of the Boards of Appeal of the EPO before dealing with the UPC.

    On the other hand, the more mess is created, the more “legal advice” will be necessary, and here we come back to the pocket filling aim from the beginning.

    The UPC is such an example of lobbying and leading the politicians, under false premises, to adopt an agreement whose beneficiaries keep in the background but push other in front so that they can cash in under the apparently most moral pretexts.

    Let’s hope that there will be an end to this story. It has cost a lot of energy up to now, not for the benefit of society at large, but the one of vested interests who keep well hidden in the background.

    Techrights: FINGERS OFF!!!!

    1. Attentive: my advice would be to not hold your breath waiting for sensible answers to the important questions that you have posed.

      I have been waiting years now for a plausible answer to the even more fundamental question of how the UPC can simultaneously meet the requirements of Article 267 TFEU (where preliminary references are only admissible if they are made by a “court or tribunal OF a Member State”) whilst being based upon an Agreement that allegedly establishes an INTERNATIONAL court (which permits the participation of a non-Member State).

      Given the speed with which arguments have been generated by the UPC’s proponents on other points of law that threaten the viability of the UPC project, I believe that the long period over which not even a remotely plausible answer to this question has been provided can now be taken as strong evidence of the non-existence of any such answer. However it is evident that even non-compliance with EU law (ie the creation of a court that would destroy the integrity of the EU’s legal order) is no deterrent to those seeking to make the UPC a fait accompli.

      My guess is that the proponents of the UPC are envisaging a situation in which the CJEU will keep the show on the road by delivering a judgement that, no matter how unconvincingly, glosses over the fundamental incompatibilities between the Agreement and EU law. Sadly, such a travesty is not as implausible as it ought to be. This is because there is evidence that, where there is enough political will, even immovable legal obstacles can be overcome (think, for example, of the decision of the Supreme Court of the Netherlands which ruled that recourse to ILO AT – which only accepts after the fact complaints from individuals – is an adequate recourse for those seeking to exercise their right to COLLECTIVE bargaining).

      With this in mind, perhaps the most important question to answer here is why are the proponents of the UPC so seemingly confident that the political will is there to push their pet project over what should (for the sake of maintaining the integrity of the EU’s legal order) be an insurmountable obstacle? In other words, how can they be so confident that the politicians will support their project no matter what untold damage it might cause?

  5. The proponents of the UPC can be so confident that the politicians will support their project no matter what untold damage it might cause as they have either literally brainwashed, or they have discovered some skeletons in the cup-boards of the politicians in charge of the matter. I would rather go for the first alternative.

    That the former president of the EPO even participated in the game is a disgrace. He should defend European industry at large and especially European SMEs, and not publish fake studies helping the proponents of the UPC to hide behing the fig leave of the SMEs.

    The UPC, and even more so its Rules of Procedure, have been concocted behind closed doors by a select group of co-opted members, disregarding anything going against their interests.

    This reminds me of a very powerful group undermining law and order but working exclusively for the benefit of its members coming originally from the Southern part of one of the founder nations of the EU.

    Techrights: FINGERS OFF!!!

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