President António Campinos of the European Patent Office, the Chair of the EPO Unitary Patent Select Committee and members of the UPC Preparatory Committee met today to discuss the implementation of the Unitary Patent package.

According to an EPO report, the meeting “came after the judge in charge of a complaint that had been lodged by an individual against German ratification of the UPC Agreement with the German Federal Constitutional Court [FCC] indicated in a recent interview that it was the intention of the Court to render a decision in the first quarter of 2020”. The judge who is referred to is Peter Huber of the FCC. He told the website Managing IP in an interview last November that case 2 BvR 739/17 would probably decided within months. “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 Managing IP. “But it is likely that we will get along with it.”

As the EPO reports: “The EPO President and representatives from EU Member States expressed their optimism that the Court will render its judgment as announced and their hope that the Court will clear the way for German ratification. They emphasised that the UPC and Unitary Patent are of paramount importance to competitiveness, growth and innovation in Europe and called for the speedy implementation of the system.

The meeting made it clear that the EPO is ready to register the first Unitary Patents and that the Preparatory Committee has advanced its work as far as possible. However several key steps in establishing the UPC cannot be taken until the phase of provisional application is underway and therefore some work still need to be done. EPO President Antonio Campinos said: ‘We are confident that the necessary steps can be accomplished in time for the Unitary Patent package to become operational at the end of 2020.’

The Chairs of the two committees, Alexander Ramsay and Jérôme Debrulle, added: ‘We are all waiting for this reform, which is the most significant one since the creation of the European patent system almost 50 years ago, to finally become a reality. Our users – and in particular SMEs – will strongly benefit from it because it will make Europe more competitive in relation to the United States and Asia.’”, according to the EPO report.

Remarkably, there is no reference whatsoever to the situation in the UK. The Brexit is imminent and creates great uncertainty about the future participation of the UK in the Unitary Patent project, in which it had a prominent role. A central division of the Unified Patent Court is envisaged in London, for instance. A crucial issue is whether this court with the UK as a member could still refer matters of Union law to the CJEU.

Earlier this week, Downing Street issued a statement on the UK’s future relationship with the EU, ruling out any jurisdiction of the CJEU in the UK. According to this tweet of IAM Magazine, “that would seem to kill off hopes that the UK might be a member of any future Unified Patent Court system”. Below the tweet, however, Russell Barton (of Rogers and Withers?) points out that “People made exactly the same conclusion from statements by Theresa May – and she went on to approve the ratification of the UPCA.”

Reading the EPO report, one also wonders whether really nothing has been said during the meeting about the impact of the Brexit on Germany’s willingness to complete the ratification procedure of the UPCA. The Ministry of Justice of Germany has made clear that, even if the Federal Constitutional Court dismisses the constitutional complaint of Dr. Ingve Björn Stjerna, the government will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear.

Maybe Campinos, Ramsay, Debrûlle wanted to convey a message of hope to supporters of the UP system, but leaving out any reference to these two elephants in the room will not help to convince that the Unitary Patent and Unified Patent Court will really start functioning at the end of this year.


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10 comments

  1. “Our users – and in particular SMEs – will strongly benefit from it because it will make Europe more competitive in relation to the United States and Asia.” reminds me of “War is Peace. Freedom is Slavery. Ignorance is Strength.”

    Honestly, how on earth could the UPC be beneficial to SMEs?

    Do these people really believe that nonsense? I can imagine the UPC to benefit quite a few parties, but the SMEs are not among them to be sure.

    1. High costs and lengthy proceedings make the EPO route objectively challenging for SMEs. There are reasons for the continued reliance on national filings and alternative tools when they are available, such as utility models in Germany.

      If the EPO really wants to be on par with other prominent patent systems in terms of attractiveness for SMEs, why not look at a 50% reduction of all fees for SMEs and individual applicants, as in the US ?

  2. After Brexit, the AETR caselaw will kick in.

    AETR was used during the EPLA discussions to legally exclude non-EU member states like Switzerland.

    Italy should use the AETR to reclaim the London court in Milan.

    And this EPO and other NPO press release looks like “We want the unitary renewal fees in our pockets”.

    The UK cannot stay in UPC, it has to be renegotiated so that art6-8 (supremacy of the CJEU) is reestablished.

  3. Just a thought, but could it be, that departure of the UK from the EU will ease re-negotiation of the UPC, allowing it to come into force sooner rather than later (or not at all).

    I mean, lawyers in England find it so hard to reconcile their system of law with that on the European mainland. And civil law practitioners from the remainder of the EU, in discussion with nit-picking English lawyers, find it hard to appreciate where those English lawyers are “coming from”.

    True, the Republic of Ireland also has English law but RI is a relatively small EU Member State, with no delusions that it is the true carrier of the flame, the fount of all logic, and all nations in Western Europe should follow its lead.

    So, from now on, legal discussions between the 27 remaining EU Member States, on all legal issues, not just patents, should proceed more smoothly and efficiently. That would go wider, extending for example to any legal discussions between the EU and any or all of China, Japan, Korea.

    Meanwhile, lawyers in England will be more free to get into a warm and self-congratulatory huddle with their cousins in the USA.

  4. It is difficult to see more denial of reality from people in responsibility.

    Up to now Mr Ramsay was alone in its wishful thinking, now he is joined by the head of the EPO and the head of the “Select Committee”.

    That they do not want to see all the energy put in the UPC having been wasted is understandable, but the message conveyed cannot be a message of hope, but of meaningless self-prophecy.

    What gives those distinguished people the assurance that the German Federal Constitutional Court will dismiss the complaint about the UPC, and the further complaints about the independence of the Boards of Appeal of the EPO?

    The recent attempt of the head of the EPO to twist the arm of the Enlarged Board in matters of Art 53, b) and R 28(2), does not abode well for the independence of the Boards of Appeal.

    When Downing Street makes clear that the CJEU will not have any influence in UK, it looks bad for the London Section of the Central Division. Just let Art 87(2) UPCA work? Can it be constitutional that an international treaty might be amended by a decision of an administrative body bypassing parliaments unless the government decides to submit the amendments to the parliament?

    What is amazing is that those people think that the UPC is of “paramount importance to competitiveness, growth and innovation in Europe” and that “Our users – and in particular SMEs – will strongly benefit from it because it will make Europe more competitive in relation to the United States and Asia”.

    Why have countries like Poland and the Czech Republic decided not to join the UPC? If the perspective for their industry would be as rosy as is pretended by those people, they should have jumped at the possibility to join the UPC.

    It remains a matter of fact that barely a third of the applications filed at the EPO stem from EU member states. And from this third how many stem from SMEs? I would like to see a coherent demonstration and not a repeated allegation that SMEs will profit from the UPC. In this respect, the pseudo studies published by the EPO under the precedent head of the EPO are not worth the paper they are printed on.

    As 2/3 of the applications stem from outside the EU, the big beneficiaries are US, Japanese and other Asian countries, and not Europe. How stupid to give those countries the possibility to have one point of attack when starting litigation in Europe.

    In how far this possibility to centrally attack European Patents is of “paramount importance to competitiveness, growth and innovation in Europe” remains to be convincingly explained. Why has the basic fee for infringement be set at 11 000 €, and the basic fee for a nullity action or a counterclaim for nullity set at 20 000 €? There is a clear advantage for the patent proprietor. Why this disproportion? To help SMEs?

    On the other hand, when seeing the quality of European Patents dwindling, some of the proprietors might have bad surprises. Just look at the number of patents revoked or heavily reduced in scope after opposition, be it for added matter or lack of patentability. The number of cases in which the patent was revoked in view of prior art not available in the search files of the EPO is negligible.

    And last but not least, how to avoid diverging case law between the UPC and the Boards of Appeal of the EPO? Both are competent to decide upon the validity of granted European Patents.

    As the proprietor might limit his patent during all its life, why not extend the possibility of an opposition to the same extent. This would make the UPC superfluous, as the industries needing a patent in more than 5-7 countries can be counted on the fingers of a hand. This would keep all member states of the EPO on a par.

    And this would be cheaper and not give an advantage to companies with deep pockets helped by internationally acting lawyers firms also poised to fill their pockets.

    Techrights: FINGERS OFF!!! Directly or indirectly, you know what I mean!

  5. The wishes expressed by the EPO and its Administrative Council which outcome they expect from pending proceedings may influence the Boards of Appeal in their decisions. This approach will certainly not work with the Bundesverfassungsgericht.

  6. It appears that the average time to deal with an opposition in first instance is slowly getting down, but at the price of establishing two classes of examiners: those dealing with oppositions and the other.

    The stumble block is still the length of appeal procedures and in spite of the heavy recruitment of the last two years it will take a while to clear the backlog.

    Guess who caused the delay by refusing to propose new members of the Boards, but at the same time increased the appearance of their independence?

    Your guess is right: one of the fiercest proponents of the UPC, who left behind him a trail of devastation especially when it comes to quality. I am not even talking about the social unrest, which is still present, whereas his successor was recruited to put it back in order. What has he done: nothing! On the contrary, by pretending that the EPO is broke he is on the best way to increase social unrest.

    Increasing the number of grants by 80+% and overall production/productivity by a third without giving examiners the means to achieve it reasonably will have consequences for a long time. This to the point that it is accepted that the rate of non compliances has risen tremendously. One quarter of the files dealt with at the EPO are defective! But we are still better than the USPTO so everything is OK.

    What SME need are solid, well examined patents and not quickly granted patent which are not worth the paper they are printed on. may be a fee reduction of 50% could help, but then, were will be the money to increase our Miles and More Account?

    Techrights: FINGERS OFF!!! Directly or indirectly!

  7. You see, your problem is that you keep reading such announcements and taking them seriously, genuinely believing that the ones who made them have at least a faint idea of what they are talking about. Guys, this is not the case anymore.

    One way to – temporarily – survive at this disaster is to avoid getting into contact with anything published from EPO management. It is a pity that posting screenshots is not allowed here. 90% of the announcements appearing in our Intranet – and forwarded to hundreds of displays installed everywhere in the office – are:
    – condolences to colleagues who suddenly died. Every single time using exactly the same identical words.
    – congratulations to new EPO directors who keep arriving, at a pace of one per week, directly from the EUIPO,
    – advertisements from our pres and his hispanportofrench friends smiling, visiting places and helping the world.
    If it was not a disgrace it would almost be funny.

    Yes, 10% or the announcements are still useful and related to patents, but “we are confident that the necessary steps can be accomplished in time for the Useless Posts package to become operational at the end of 2020”.

  8. I regret the reference in that last contribution to “hispanoportofrench friends”. Reflect on the point that the poster known as “Attentive Observer”, perhaps the most vociferous critic ever of the (French) immediate past President, might also be from that part of the world. Please don’t imply that there is one bucket in which all “hispanoportofrench” people fit. The distress is when an admirable, expert and socially valuable institution (such as a large hospital or Patent Office) becomes victim of a coup by a self-serving and incompetent managerial class that is interested only in pleasing its “make hay while the sun shines” ignorant, blinkered and greedy investor employers.

    That said, I seriously regret a loss of balance in the EU, resulting from the withdrawal of the UK from Europe. An OD or a TBA composed of three active members is perhaps the safest way to get to sound decisions. Any “rogue elephant” can be guided onto the right path, but only if there is an elephant one on each side of the rogue.

    In the EU, the Big Three were, until recently, DE, FR, GB. With the departure of GB, there is increased likelihood of the EU taking a succession of wrong turns, thereby bringing about the demise of the whole thing

    1. You are so right Maxdrei. All hispanportofrenchs do not belong to the same bucket. By the way I am and EPF too.
      Unfortunately (luckily?) most of us are not among his ‘friends’ saving the world. We are rather easy to spot: you can find us in front of a PC, trying somehow to make the EPO functioning, against all odds.
      Good luck everyone!

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