The German government has been acting fast since the Federal Constitutional Court declared void the German ratification of the Unified Patent Court Agreement in March. It submitted a new draft bill to ratify the UPCA last week, which was sent for consultation to associations and other institutions. Their deadline for filing opinions is three weeks.

Quite a few observers considered the Constitutional Court’s decision last March as a decisive blow to the Unitary Patent project, which had been delayed by years already, not only because of the constitutional complaint filed by patent lawyer Ingve Stjerna in March 2017, but also by the Brexit and more recently the statement of the government of Boris Johnson that the UK is no longer interested in participating in the Unitary Patent system – despite statements to the contrary from previous governments.

But less than a week after the FCC decision, the German minister of Justice and Consumer Protection, Christine Lambrecht, issued a press release of 26 March 2020, stating: “I will continue to work to ensure that we can provide the European innovative industry with a Unitary Patent and a Unified Patent Court. The Federal Government will carefully evaluate the decision of the Federal Constitutional Court and examine ways to remedy the formal deficits the FCC found during this legislative period.”

Since then, apparently work has been done. Taking into account the short consultation period, it now seems possible re-ratification of the UPCA in both chambers of parliament could be completed this year.

In the text accompanying the new draft proposal, the German Ministry of Justice and Consumer Protection explains that the FCC declared void the UPCA only on a formal ground: it wasn’t approved by a two-thirds majority. The Ministry reasons that this is the only problem to be solved, as three substantive points of the constitutional complaint were held inadmissible: ratification must be done with the required two-third majority.

The fact that the UPCA will have to be amended due to the UK’s exit from the UP project – London is mentioned as the venue for one of the court’s branches of the central division, for instance – is apparently not seen as a problem. Winfried Tilmann, consultant at Hogan Lovells and one of the court’s founders, told JUVE Patent this can be discussed once Germany has ratified the UPCA: “It would be better, once the provisional application phase is under way in accordance with the protocol, to determine in the competent administrative committee the inevitable legal consequence of the loss of London, namely that the tasks of London will be provisionally performed by the remaining central divisions.”

Despite the German diligence, several problems are looming however. New constitutional complaints, to begin with. Immediately after the FCC had declared the German ratification procedure void, Ingve Stjerna told JUVE Patent: “The court did not even rule on the substantive complaints and even hinted at further constitutional deficits of the agreement. (…)  If, despite these problems, the German government continues to adhere to the Convention [the UPCA, ed.], a new constitutional review by the Constitutional Court will have to be considered, possibly of a complaint from a company.”

President Benjamin Henrion of the Foundation for a Free Information Infrastructure, also announced his organisation “will go fundraising to file a second constitutional complaint in Germany against EU-wide software patents via the backdoor of the Unitary Patent Court.”

As reported here, a possible ground for a challenge is that the UPCA’s provisions that establish the primacy of EU law violate the German constitution. Complaints before the FCC, if materialized, could lead to further delays for the Unitary Patent system, although it isn’t sure the constitutional court will ask parliament or the German president to suspend activities concerning the UPCA pending a decision, as happened in 2017.

In the meantime, Alan Johnson, former partner of Bristows, raised an interesting question on Twitter: “So Germany is to ratify a treaty still naming London as the seat of the pharma CD! If this goes through and with the UK not yet having withdrawn its instrument of ratification (even if this is legally possible) does the UK automatically become a participant country?”

Precisely because of this issue, Patrick Breyer, representative of the Pirate Party in European Parliament, has asked the European Commission to confirm that Germany no longer has the right to ratify the UPCA, as according to EU case law, Member States must not enter into agreements with third countries that affect EU rules or alter their scope.


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27 comments

  1. What a mess my home country is creating.
    Has anybody responsible even read the complaint and the decision by the FCC?
    Likely they only listened to consultants. And since the budget for consultants has become problematic due to the example of Ms. von der Leyen, these consultants are then payed by interested external companies, who have an interest in a certain outcome.
    Lobbyism has become so easy in Germany.

    1. Why is the ministry not doing a public consultation?

      A public consultation was apparently denied in the past by some CDU or CSU member of the Bundestag who then became a judge on the Stjerna complaint. What a coincidence.

      1. The new Chairman of the GFCC, Mr Harbart, is a former lawyer and MP for the CDU. According to official figures published by the German Bundestag, his earnings as a lawyer were much higher than his salary as MP. Because of this, there was even a petition against his nomination as Chairman of the GFCC.

        He has always be in favour of the UPC, and should a new complaint come to the GFCC, it might be wiped out at once under his influence. At least as long Justice Huber is in place in the Second Chamber, this risk is rather remote.

        Mr Harbarth is not Chairman of the Second Chamber as its predecessor was, but from the First Chamber, but he can exercise its influence.

        Techrights and zoobab: FINGERS OFF!!!

        1. I found some recent blogpost today by the FFII, via Twitter:

          https://ffii.org/ffii-rejects-the-proposal-by-the-german-ministry-of-justice-to-present-the-agreement-on-the-unified-patent-court-upca-to-the-german-parliament-for-ratification/

          I discovered there was also a complaint that was not treated in Belgium, by the same person.

          The legal arguments raised there were that the EPO cannot be sued for maladministration (rule of law, art2 TFEU), the discrimination of languages (difference of treatment between french and dutch speaking companies) and equality before the law (legally binding for french speakers vs non-legally binding for dutch speakers).

          The language of the defendent under the UPC can also be forced, which seems to be contrary to some international treaties. Any ideas which treaties are covering this problem?

  2. In general lobbyists are rather discrete. At least in the German Ministry of Justice, we now have a name.

    When less than a week after the decision of the GFCC was disclosed, the minister in charge of the UPC published the famous communiqué that Germany was pursuing the ratification of the UPC, it was clear that it was not the minister herself who had this idea. The communiqué was manifestly prepared by some members of her ministry, acting for some lobbyists.

    Mr Stjerna has clearly shown in various publications that the Ministry of Justice was filled with proponents of the UPC which tried to hide some negative aspects of the UPC for Europe and especially European SMEs, so that the Parliament would ratify without batting an eyelid. The problem is that the ratification was declared void by the GFCC.

    It was interesting to read an article of Mr Tilmann published in GRUR 2020, 441. In this article, VI, 2.b) Mr Tilmann explained that the UPC could enter into force and that the London Section of the Central Division would simply be given at least provisionally to Paris, and the life science section could be later located in a different place. This could be done on the occasion of a a further amendment needing a subsequent ratification.

    The problem is that Mr Tilmann has not given the faintest legal basis for such an interpretation of the UPC, not even via the Vienna Convention on the Law of Treaties (VCLT).

    What is interesting is that the same statement is to be found in the explanatory note of the Ministry of Justice, relating to the new ratification act to be presented to the Parliament, see Point B. third to sixth §. We can thus suspect that Mr Tilmann had a direct influence in this respect.

    At least the draft proposal from the Ministry of Justice mentions that a political declaration of the remaining member states under Art 33(3) VCLT would be necessary.

    It appears naïve to bank on such a declaration from the remaining member states, which would have for effect, according to Mr Tilmann and the civil servants in the ministry, to at least provisionally, give the life science section to Paris. This seems wishful thing at its best.
    Nevertheless it is abundantly clear that Mr Tilmann, if he is not the co-author of the explanatory note, he has at least strongly inspired it.

    In his Article in GRUR, Mr Tilmann mentioned Art 25(2) VCLT, according to which, “the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty”. For Mr Tilmann it is enough for the UK to notify its withdrawal from the UPCA under Art 25(2) VCLT for it lose its status as “Member State” of the UPCA and then Italy takes over the position of the UK as far as ratification is concerned.

    It should also not be forgotten, that the UK has up to now simply declared that it does not wish to apply the UPCA, but has not officially declared its withdrawal from the agreement. In an earlier comment, I have explained that eventually this would allow the UK to blow up the UPC. I will not repeat it here.

    If Italy takes over UK’s position as far as the entry into force is concerned, I fail to see the logic behind denying Italy to take over the position of the life science section of the Central Division.

    The question raised by Mr Johnson in the present blog, as well as the question of Mr Patrick Breyer to the Commission requires a reply by the German authorities, whatever they might think or say.

    http://patentblog.kluweriplaw.com/2020/06/02/upca-should-be-abandoned-and-substantive-reform-at-eu-level-taken-up/?doing_wp_cron=1592029445.6969950199127197265625

    What is also surprising is that the new draft proposal does not say a single word about the constitutional questions raised in § 166 ff. of the decision of the GFCC about the primacy of EU law over the German Constitution. I refer here to the blog of Mr Klopschinski.

    http://patentblog.kluweriplaw.com/2020/05/18/primacy-of-eu-law-over-national-law-german-federal-constitutional-court-judge-comments-on-unified-patent-court-decision/?doing_wp_cron=1592029452.2258329391479492187500

    In its article in GRUR, Mr Tilmann considered that the FGCC should have replied to the question it has itself raised, but at the same time he does not see a threat for a renewed ratification in this respect, see Vi, 3, b).

    We have here a further reason to believe that Mr Tilmann has guided the hand of the drafter of the explanation note of the new ratification proposal.

    My grand-father used to say: if you bury your head in the sand, do not wonder if your bottom gets smacked.

    This is what might happen to Mr Tilmann and his aides, not only in the German Ministry of Justice, but also in France. A very renowned litigation lawyer even went so far as to consider the transfer to Paris of the life science section of the Central Division was a gift from Brexit, but it would be wise to keep quiet about it. I think at least this hope must have vanished by now.

    Nothing against European Integration, but not the type of integration some lawyers want to push down our throats at any rate. They want a return on their investment, but this is not a reason good enough to clamber us with such a badly drafted agreement.

    Techrights and zoobab: FINGERS OFF!!!

  3. There are 709 seats in the current 19th legislature of the Bundestag. (It is considered bloated, but that’s another story, mostly.)

    If my math is right, you need 473 votes to get a 2/3 majority.

    The government coalition parties have together 398 votes (Union: 246; SPD: 152). So assuming there are no defections (a big “if” in my opinion, as the SPD seems vaguely inclined to rock the boat these days), you need to get 75 votes outside the GroKo to make it past the threshold.

    I wouldn’t expect the Linke or the Greens to show any particular enthusiasm for that miserable contraption, and the AfD must be handled with a very long barge pole.

    That just about leaves FDP (liberals), which are the butt of nearly every second joke by German late night and comedy TV hosts. They have 80 seats. What awful bargain could they possibly drive in exchange for their support? And is that price really worth it for the government?

    1. In the Germany that I am familiar with, all parties represented in Parliament, including the Liberals (FDP), except the AFD support the European patent reform. So I doubt that the required 2/3 majority cannot be secured.

      The decisive question, however, lies beyond Parliamentary majorities: How will they prevent new constitutional complaints (expect more than one this time) from being filed? Some (very) legitimate grounds are obvious from the first BVerfG decision.

  4. A thread of high quality, I would say. I got a shock when I read that the GroKo would need 75 extra votes but that the FDP, with their 80 votes, can deliver exactly that.. All three Parties will then shout that they are doing all they can to foster technical innovation in Germany, a very worthy aim, and will milk the UPC idea for all that it is worth.

    Why the shock? Well, the FDP are desperate for something to prove to its clients that it can still deliver and would see the UPC as ideal gift offer for its clients. Vote for me and i will bring you faster and cheaper enforcement of your patent rights. I would think that those 75 votes are more or less in the bag already.

    Of course, that all depends on both the FDP and its clients falling victim to the scam, the snake oil salesmen of the UPC, that it will do something for SME’s. Sadly, the reality is that the UPC (in its present form) is good only for the global titan corporate behemoths and the multi-national litigation law firms that serve them. When will the FDP and the SDP see the light, I wonder.

  5. I can only but support Max Drei when he says that the “UPC (in its present form) is good only for the global titan corporate behemoths and the multi-national litigation law firms that serve them”. He is also right when he wonders whether the FDP and the SDP will see the light.

    I would say that an information campaign, I could call it inverse lobbyism, towards Members of the Bundestag could make them think twice about ratifying such an agreement. There are enough elements at hand to justify a negative attitude towards ratification:
    – The disastrous effect of the UPC on European SMEs
    – Opening the door and facilitating IP attacks on EU industry by non-EU patent holders
    – A court which can dismiss a judge, but not giving him any means of redress (Art 10 of the Statute, part of the UPCA)
    – The fallacy of saving money with annual fees, as the average designations of EP lies between 5 and 7
    – Translations provisions which do not allow to deal with the patent in the language it has been delivered, but in the Central Division, whereby it is claimed that there are no translations required with the UPC
    – Compatibility of the language provisions of the UPC with the London Protocol on translations. How can countries having ratified the London Protocol accept that translations in English, when the EP is granted in French or German, or in any language of an EU member state of the UPC when the EP is granted in English, have to be filed for the EP becoming a UP? I would say that the at least the London Protocol has to be amended in this respect. Whether the provisional period is 12 years or shorter, the corresponding problems cannot be swept under the table.
    – The possible clash between case law of the UPC and case law of the Boards of Appeal in matters of validity. As we now have a “dynamic” interpretation of EBA decisions, this should allow the AC and the President of the EPO to put enough pressure on the EBA to get the desired result.

    There are further Damocles swords hanging over the UPCA and its ratification by Germany, to start with the question of supremacy of EP law as raised in Point 166 of the first decision of the FGCC.

    Another aspect is that the UPCA has never been submitted to the CJEU. With the time lag induced by the Brexit and the complaint before the FGCC, it should have been possible to do so.

    As Madame UPC at the EPO has often repeated: “When there is a will, there is a way”. Why was there never a will to submit the UPCA to the CJEU? After all, the EPLA was submitted to the CJEU, and it would have appeared logical to do the same with the UPCA. It is not enough for the promoters of the UPCA to claim that it is conform to EU law, it would have way better to bring the proof of it.

    Can one think what the CJEU will say should the UPCA enters into force and the UPC starts delivering decisions having as member state a state having officially declared that it does not want to participate, and for which after Brexit Brussels I on mutual recognition is not any longer applicable? Probably nothing very positive. The only conclusion is that the promoters of the UPCA still bank on a fait accompli to frighten the CJEU to go against the UPCA.

    It has been proposed quite a while ago (not by me!) to extent the opposition period before the EPO to the whole life of a patent. I can agree with this view, as after all, if the proprietor of the patent can request a limitation or even a revocation during all the life of patent, why should it not be possible to third parties to file an opposition at the EPO during the whole life of the patent?

    I would go one step further. If the opposition period for the EPO is extended to any EP, whether it is a bundle or a unitary patent, it would be possible to avoid divergent case law between national courts of the member states and of the UPC in validity matters.

    National courts and the UPC would only be competent for infringement. In other words, a kind of international bifurcation! I can already hear all kind of screams from all those involved, national courts and IP lawyers, whether it is not sure which of the two would scream louder.

    In view of the low number of truly transnational litigations in Europe, the need for something like the UPC should be scrutinised and it should be left to truly independent experts to decide whether it is an absolute necessity. A proper assessment of the cost saving should be made, and not by merely comparing apples and pears as has been done for the present UPC.

    If it turns out that something like a UP would be helpful, such a new UPC could be called UPC2 only dealing with infringement.

    One fundamental prerequisite would be that the BA of the EPO become truly independent of the management of the EPO and possibly from the AC, which they are not presently. Alone the fact that re-appointment of members of BA according to some “performance” criteria, which are not even public, shows how their independence is inexistent. This is reinforced the present Boards of Appeals Committee, in which representatives of the AC and external judges are sitting.

    Do you know any judicial institution which is controlled by members of the executive and judges external to it? Applied to the CJEU it would means that representatives of the Commission and external judges control the CJEU.

    Such a UPC2 should preferably be also valid for all EU members, and not for merely some. In order to protect European SMEs more than some fee reductions and ceilings in damages should be introduced.

    Would this not be a wonderful topic for a conference of ministers of the Contracting States responsible for patent matters, as provided in Art 4a EPC2000? In 2022 we will have had the third 5 years period, and nothing has happened in this respect. Would it not be time for the AC and the management of the EPO to start abiding by the EPC?

    It is allowed to dream, isn’t it?

    Techrights and zoobab: FINGERS OFF!!!!

  6. If the German Government – as a major driver behind the reform – wants to stand the slightest chance of bringing the UPCA in force in unamended form, it must happen before the UK finally leaves the EU, currently envisaged for the end of this year. After this has taken place, amendment becomes plainly inevitable. They know that any UPCA revision will require highly unwelcome concessions from their side, causing them to beat this dead horse as if there was no tomorrow.

    Part of the problem is that many of the individuals involved have a personal stake in the fate of the UPCA as it stands, be it of a merely financial nature, be it career prospects, be it both. As long as the major decisions are made by the always same people, who also bear the responsibility for what has happened so far and are thus strongly biased towards the one particular outcome serving their needs, unlikely as it may be to achieve it, reason will have no place in this.

    1. “it must happen before the UK finally leaves the EU, currently envisaged for the end of this year. ”

      UK has already left the EU.

  7. So let me summarise.

    The German government passes a law that the BVerfG voids the grounds of unconstitutionality.

    Subsequently, a written question is submitted to the European Commission, asking them to confirm whether CJEU case law precludes Germany from ratifying the UPC Agreement.

    The German government responds to all of this by presenting a draft law that the BVerfG has very clearly warned would also be unconstitutional.

    In other words, the German government has decided to press on despite very clear reasons to believe that the end goal would be unlawful. And all of this carried out in public, where an informed (and, in parts, highly sceptical) profession can clearly see what is going on. You have got to hand it to the persuasive powers of those pro-UPC lobbyists!

  8. Some more thoughts, FWIW…

    – Sanitary distancing precautions aren’t about to be lifted any time soon, but summoning a special sitting with all MPs present would imply packing 709+ warm (?) bodies hugger-mugger in an overall surface of about 1000 square meters. One could reduce the risk somewhat by taking over the visitor’s gallery. Alternatively, the actual debating on the floor could be curtailed, and the ceremony reduced to having MPs entering one by one from outside just to cast their vote according to party discipline and be done with it. Would Mr. Schäuble go along with that? The resulting optics wouldn’t be good for such a high profile event that is bound to attract a lot more media attention in the current context.

    – Art. 79(2) GG not only demands a 2/3 majority in the House, but also approval in the same proportion by the constitutional council (Bundesrat). I’m somewhat befuddled about the dynamics prevailing there, but I surmise that the higher threshold demanded might prompt closer scrutiny.

    – Section C of the bill laconically invokes “TINA” (“C. Alternativen : Keine.”), as usual. ’nuff said…

    – In the Hansard for 9 March 2017 (Plenarprotokoll 18/221) mentioned in the BVerfG decision, there is a speech by Renate Künast which clearly suggests opposition by the B90/Grünen fraction. However, surprisingly, Harald Petzold of Die Linke made a speech pretty much entirely in favour of the bill. These two parties have 67 and 69 seats in the current parliament. There is nothing on the record on this matter by the FDP, which is somewhat strange, as justice-related matters seemed to be their natural stomping ground. (The post of Justice minister traditionally went to a FDP MP in coalitions involving them, and Ingo Kober was a card-carrying member of the FDP and a Staatssekretär at the BMJ his tenure as EPOrg president.)

    – The BVerfG appears to rely on a video recording (which I can’t locate) to determine how the vote on the prior bill was organised. From the description, it sounded like one of these shameful rubber stamping sessions with the barest quorum present, e.g., as in this after-hours second and third reading of a security bill, which became a law in all of 87 seconds: https://youtu.be/sHsJNDdKrh0?t=37 . (Why do you need all these MdB for, if most business is conducted that way, and the real decisions made elsewhere?)

    – Defeating this new bill could possibly involve the active contribution, or at least abstention, of the AfD Fraktion. A rejoicing prospect — NOT. 🙁

  9. Dear news2go,

    I would not say that the German Government is a major driver behind the reform, but some IP lawyer firms which guide the hand of the drafters of the new ratification act.

    Even if the UPCA enters into force before UK has left the EU, and there is not too much time left, it will not help much as the question of the London Section will remain. I would even say that the mess will be perfect.

    It is not to be forgotten that Mr Tilmann has opinions which vary with its actual interests. After the CJEU had given a blow to the EPLA, he was of the opinion that the successor of EPLA would only be reserved to EU member states, in order to claim a few years later that UK could stay in the UPC. At the time there was still a convergence of interests between lawyers on both sides of the Channel.

    Another one of the participants of the drafting committee was even hoping that other non EU member states could join the UPC. He must have forgotten the opinion C 1/09, and was merely driven by the hope that the UPC could be more attractive. Imagine the more countries you can litigate in one and the same action, the higher the fee, even if infringement would not occur at once in all EU member states!

    All those IP lawyer firms having sat in the drafting committee of the rules of procedure of the UPC are desperate to see a return on investment, and want to be able to fill their pockets with supranational litigation. They could not give a damn whether it is good for Europe, or better what is good for them is good for Europe, to paraphrase an old say. They are just eager to fill their pockets.

    At least the British lawyer firms having sat in the drafting committee have now given up their hopes since the UK government has clearly stated that it will not participate in the UPC. The UK government made it plainly clear that it does not want decisions of the CJEU to be applied in the UK.

    Those UK IP lawyers firms have now come up with the idea to adapt the UK litigation procedure in order for them to stay in the running and even to develop a system which could resist the competition of the UPC, and even top it up.

    Sometimes there seems to be a kind of rat race between those two poles who were united as long the perspective of a joint judicial system allowed the hope of filling their pockets on both sides of the Channel. This is also a reason why on this side of the Channel some people now want the UPC to start before the Brits could develop their system. But one thing is common to all those people: the eagerness to fill their pockets, and for this they are prepared to spread blatant lies.

    A friend of mine has just written to me:
    “The UPC story also shows how decision makers are deciding: not based on facts and critical assessments, not listening to “advisors” without any critical attitude (in a normal world, they would be called lobbyist… and lawyers that have a huge interest in the system…)… and which advice is -at least in part- based on lies”.

    How true this is!

    Techrights and zoobab: FINGERS OFF!!!!

  10. With regard to the supposed “withdrawal” of the UK from the UPC Agreement, I would merely direct the attention of Mr Tilmann and Ms Lambrecht to Articles 42(2), 54 and 56 of the Vienna Convention.

    The UPC Agreement does not contain any provisions that govern withdrawal. Thus, Articles 42(2), 54 and 56 VCLT apply. Of particular importance in this regard is Article 56(2) VCLT:
    “A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1”.

    Thus, under international law, the UK will remain a Contracting Member State (CMS) to the UPCA Agreement until at least 12 months have passed after it has consulted with the other CMSs (Article 54 VCLT) and has given notice of its intention to withdraw.

    With regard to this exercise, the relevant boxes simply have not been ticked. The UK’s notification under Article 50 TEU is not really enough on this point. Also, one might recall that Messrs Tilmann & Co were, until very recently, arguing that the UK could participate in the UPCA irrespective of Brexit. It seems that such arguments may now come back to bite them!

  11. To quote the BMJV’s statement:
    “Es kann aber nicht so verstanden werden, dass es einen Kammerstandort in einem Nicht-Vertragsmitgliedstaat errichten beziehungsweise belassen möchte”.
    (“It cannot, however, be understood to mean that it wishes to establish or maintain a chamber in a non-contracting Member State”)

    This statement is clearly contrary to the position adopted by the BMJV between the Brexit vote and issuance of the UK government’s statement regarding non-participation in the UPC. However, it also makes no sense.

    Each participant to the UPC Agreement is designated as “Contracting Member State”. Thus, a NON-“Contracting Member State” is simply a State that is not party to the UPCA. The BMJV’s statement is therefore based upon the false premise that the UK is no longer a “Contracting Member State” to the UPC Agreement.

    It is so unbelievably disappointing to see such misdirection and misrepresentation emanating from a body that is supposed to be tasked with upholding the rule of law in Germany. Frankly, this has all of the makings of a major scandal.

    1. Why overlook the wording “Member State”? The UK cannot be a Contracting Member State any longer for the simple reason that it is not a Member State.

      1. Can you please explain why the change in status of the UK (regarding the definition of “Member State” in the UPC Agreement) is decisive in this context?

        Article 42 VCLT reads as follows.
        “The termination of a treaty, its denunciation or the WITHDRAWAL OF A PARTY, may take place ONLY as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty”.

        It is no doubt for this reason that the Chair of the UPC Preparatory Committee (Mr Ramsay) was quoted in a JUVE article as follows:
        “There are no provisions in the UPC agreement for the case of a member state that has ratified the agreement to drop out. It’s therefore very likely that the UK will have to launch a procedure under the Vienna Convention on the law of treaties”.

        Thus, despite its change in status in the context of EU law, the UK remains a party to the UPC Agreement, which is a treaty under a different (ie international) law. In view of Article 56(2) VCLT, this will remain the case unless and until 12 months have passed from the moment that UK notifies the other Contracting Member States of its intention to withdraw from the UPC Agreement. That moment has not (yet) occurred. It is therefore incorrect, or at least highly misleading, to imply that the other Contracting Member States can operate as if the UK were no longer a party to the UPC Agreement.

        There are also other possible consequences to the fact that (according to the VCLT) the UK remains a party to the UPC Agreement. For example, it is necessary to question whether the UPC Agreement can be operated whilst the UK remains a party to that Agreement. This requires examination of whether, under the VCLT, the change in the UK’s status represents a ground for invalidating or terminating the UPC Agreement. It may also require consideration of whether certain provisions of the UPC Agreement are separable from those that are clearly rendered inoperable.

        It seems pretty clear that provisions of the UPC Agreement that are rendered inoperable by the UK’s change of status are fundamental to that Agreement. The continued operation of the UPC Agreement therefore becomes tricky, on the grounds that the VCLT only really contemplates withdrawal from a treaty, suspension of the operation of a treaty (in whole or in part), or outright termination of a treaty. None of these would appear to be suitable to keep the current UPC Agreement alive.

        Thus, if the BMJV is convinced that there is a way through all of this mess, they should explain in detail why the prima facie very serious problems under EU and international laws have been resolved, or why they will have been resolved by the time of the vote on the proposed law. All I have seen so far is a lot of hand-waving, as well as an ample supply of smoke and mirrors. This is not convincing. The serious problems remain and should be directly addressed.

      2. I believe it remains an EU member state for the purposes on the UPCA until the end of the year but you may be referring to the situation after that

        Withdrawal agreement:
        Art 127- 1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

        Art 2 – “Union law” means:
        (v) the agreements between Member States entered into in their capacity as Member States of the Union;

        Art 7-For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom

  12. I don’t understand all this talk about “when” the UK leaves the EU. The UK HAS already left. it is no longer extant as an EU Member State. if it were a Norwegian Blue (as in the Monty Python sketch) it would be nailed to its perch.

    Imagine Boris Johnson revolving legs. They have already carried him beyond the edge of the cliff edge, the sheer drop. He is now in mid-air but (only because of the Transition Agreement) he is not falling yet. There is no way back to the safe ground at the top of the cliff though. It’s only a matter of time before he plummets.

    Will he arrange a safety net, to arrest his (and the UK’s) fall? No.

    Will he acquiesce to the offered 2 year extension in the TA? Again, no?

    Is there no limit to the amount of self-harm the UK is inflicting upon itself?

    Can the rest of the EU cobble together a “UPC Mark II” ? Where there’s a will, there’s a way. But how are you going to buy enough votes from the smaller EU Member States, the “little people” of the EU? There’s a way there too. Just ask the President of the EPO how he does it.

    Does any of this matter? You bet. You only realise how precious was The Rule of Law after you have dumped it.

  13. Dear Max Drei,

    As far as buying votes for small member states, no need to resort to the EPO.

    In spite of the strong resistance of the Portuguese industry and profession, Portugal ratified the UPC. The reason is very simple: it has been offered an arbitration chamber. The second arbitration chamber is foreseen in Slovenia, which to my knowledge has not yet ratified.

    That it does not really work as at the EPO, is shown by the attitude of Poland and of the Czech Republic: they might have signed, but will not ratify as the UPC is bad for their industry. I take bets that Slovakia will follow.

    But at the moment, in view of the ratification of enough other countries, the missing German ratification is the only obstacle left to the entry in force of the UPC, This explains why the German pro-UPC lobby is strongly asking in Germany. That it has invaded the Ministry of Justice is now plainly obvious.

    Techrights and zoo barb: FINGERS OFF!!!

  14. Thanks for that comment, dear Attentive Observer. I had not appreciated how many opportunities there are, to cut up the UPC cake into enough pieces to keep everybody at the table on board. One can see now how it might appear in Berlin: the option not to ratify looks politically awkward, whereas the option to ratify appeals because Germany thereby refreshes its credentials as an EU Leader, a good European and a champion of the SME. And if the UPC is a Dead Duck, so what? Ratification will then do no harm.

    One difference between the EPO-AC and the UPCA is transparency. Does anybody have any idea how the President of the secretive and unaccountable State of EPOnia cuts up slices of his gigantic finance cake, adequately to reward the smaller satellite sovereign States for dutifully following his leadership?

    And thanks to Russell Barton for pointing out how “Member State” is defined and that even though the UK has definitively left the EU, for the purposes of the UPCA, it still falls under the ambit of the term “Member State”, at least during the year 2020.

  15. Dear Max Drei,

    The only way to look at what is happening in EPOnia is to have a look at the budget allocated every year to the cooperation with member states. There must be corresponding figures in each draft budget and in each budget after its execution has been validated by the AC and the president discharged.

    There is certainly somewhere at the EPO and in the AC secretariat a table listing the various amounts given to every member state, but I take bets it is double locked. It is not a real secret that after every AC session, the cooperation budget was, let’s say modulated according the behaviour of the corresponding delegation during the AC session. You do not vote for my proposal, or raise awkward questions, you get less money.

    To be honest, the cooperation budget has always been used by all presidents as the oil needed for a smooth working of the AC, and for the presidents to impose their will to the AC. I give you EPOQUE or some IT equipment if you help me at the AC. It is only with the former one, that it became a clear mechanism of bribery.

    The overall budget should be public, at least via the member states as in most member states there is a duty for the public service to make documents available upon request. In Germany this is the way Mr Stjerna had to go in order for him to receive the preparatory documents of the first ratification bill. Somewhere in the German Ministry of Justice the EPO budget should be found.

    It should thus be possible to see the increase this budget has undergone, let’s say since 2010.

    Not to be forgotten either, that members of the AC delegations could obtained free dental treatment when coming to Munich for sessions of the AC. SUEPO has complained about it, but to no avail. As the EPO is now his own insurer it is easy to hide the corresponding expenses.

    The money for this special treatment as well as the money for the cooperation is actually paid by the fees collected by the EPO, hence by its users! This should not be forgotten.

    One the former president’s minions had a short spell as Principal Director (PD) in the Academy and was later transferred as PD to the cooperation with the member states. In the meantime he has retired.

    It is therefore not a surprise that the chef de cabinet (the husband of the head of inHR) of the former president has now been transferred, guess where: to the cooperation with the member states! Nothing has thus changed under the sun.

    That Germany wants to ratify the UPC at any rate is not in order to refresh its credentials as an EU Leader, a good European and a champion of the SME. It is to please some lobbies. It is a blatant lie that the UPC is good for the SMEs, but this in not any longer an opinion, but a fact.

    Politically it might indeed look good if Germany was to ratify the UPC in the second half of the year that is during its presidency of the European Council. I hope enough people will be able to make clear to the members of the Bundestag and of the Bundesrat that the UPC is only for the benefit of the big industry and the IP lawyers working for it.

    More and more of the collusion between the Ministry of Justice and some German IP lawyers has become public. This publicity should be increased by all possible means.

    Techrights and zoobab: FINGERS OFF!! Directly or indirectly!!

  16. Thanks again, Attentive. On reflection, I am now thinking that at EU level, the pols are now worried about Europe being mangled into oblivion, in the struggle between the USA and China for world domination and that the best thing they can do to resist that is to help Europe’s biggest corporations.

    The irony is that the UPC as presently constituted will help non-European corporations to dominate the European market, more than ever. Just look at what has happened with the EU Registered Designs regime.

  17. With the confederation of German industry being in favour of the UPC, it is most unlikely that the members of parliament will do anything other than wave the proposal through, this time ensuring that a sufficent number of MPs are present in the Bundestag/Bundesrat.

  18. “Somewhere in the German Ministry of Justice the EPO budget should be found.”

    Yes indeed. And it will be staying there for the foreseeable future.

    In case you hadn’t realised, most freedom of information legislation includes exemptions for information relating to … wait for it … international organisations …

    And the EPO is an international organisation.

    So the BMJV has a perfect get-out-of-jail card to prevent any embarrassing disclosures on that front.

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