By Dr Simon Klopschinski

As reported previously on this blog, the German ratification process for the Agreement on a Unified Patent Court (UPC) has been started anew after the Federal Constitutional Court (BVerfG) had declared the previous ratification act void because it had not been approved by parliament with the required 2/3 majority. Now there is yet another development. The liberal party which is currently in opposition has filed on 27 October 2020 a parliamentary question (Kleine Anfrage) on the UPC. Here are the most interesting bits in translation:

‘1. Has the Federal Government commissioned an independent scientific cost-benefit analysis of the European patent reform, in particular with regard to the European Patent Court, and if so, what was the result of the analysis?
2. Given the risks for SMEs which the European Commission itself admits and the lack of a cost-benefit analysis, how does the Federal Government come to the conclusion […] that European patent reform is beneficial to SMEs?
3. What measures has the Federal Government taken to ensure that the special needs of SMEs are taken into account in the design of the European patent reform, in particular in the proceedings before the European Court of Justice?
4. What measures has the Federal Government taken to ensure that SMEs can operate on an equal footing in proceedings before the UPC and that they are not structurally inferior to stronger competitors, particularly in terms of their cost situation?
5. Has the Federal Government made efforts to ensure that the special interests of SMEs are represented in the “panel of experts” of the Preparatory Committee of the Unified Patent Court?
If so, when and how was this done; if not, why not?
6. Has the Federal Government examined the compatibility of the UPCA with the Basic Law, in particular with fundamental rights and Union law, and if so, what aspects have been examined?
7. What consequences does the Federal Government see for the UPCA in the fact that the first attempt to ratify the UPCA by the institutions involved repeatedly revealed constitutional deficits?’

According to the Rules of Procedure of the Federal Diet the government has to answer these questions within two weeks. Since the ratification of the UPC Agreement requires a 2/3 majority, the votes of the liberal party will be crucial for obtaining parliamentary approval of the agreement (see here). Therefore, it will be interesting to see the government’s answers and their impact on the liberals’ voting behavior.


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5 comments

  1. All very good questions. However, I am afraid that we can already predict with 100% confidence what the responses will be, namely “Everything is in order. Nothing to see here”. We can also be certain that the responses will amount to nothing more than hand-waving, smoke and mirrors and half truths.

    If there were any valid and robust answers to the questions posed, then those answers would have been provided by now.

  2. Interesting, not one of the questions concerns the issue of Brexit and the hardcoding of London into the agreement.
    Yes, I know “Germany” provided an answer on that already, but the question is worth repeating,

    At least they’re shaking the fig leafs.

    1. Again, political achievability.
      Too many states in Europe have been against further expansion of centralized regulations (and consequent diminishment of things regulated nationally).

      And patents are too obscure for the masses to push that topic.

      Furthermore, why have a EUropean Monopoly Office if there’s a European Patent Office?
      That would be difficult to explain for the politicians, hence they tried to allow “enhanced cooperation” within the EU for those who want.

      We don’t have too much globalisation, we have too little.
      One set of rules applicable in as many regions as possible would be much easier for the industry, SME,… and avoid tax-evasions better, yet the nationalists cannot be sold to this idea, hence we live in a world of political compromises.

      Make a compromise, live with it and try to vote in ways which can make it better.

  3. Thanks to Dr. Klopschinski to draw our attention to the questions raised by the Liberal Party.

    I fear I have to agree with Concerned Observer, “that the responses will amount to nothing more than hand-waving, smoke and mirrors and half truths”.

    In the comments to the draft bill the problems of the unequal footing of SMEs vs. big industry and the deleterious effects of the UPC on SMEs have been clearly set out. But what should not exist has been carefully ignored up to now. Chances that this attitude changes are very remote!

    The Paper of Mr Xenos: “The Impact of the European Patent System on SMEs and National States and the Advent of Unitary Patent”, published in Prometheus, Vol. 36, No. 1 (March 2020), S. 51-68, is very clear about the problems encountered by SMEs with the present European IP system.

    One can expect that the German Government will rely on the EPO study about SMEs. The statistical validity of this study is very much subject to caution as only 12, in words twelve, SMEs have been scrutinised. And all scrutinised had only positive experiences with IP to report…..

    The level of fees are a clear deterrent for SMEs. Basic fee for an infringement action: 11000€. Basic fee for a claim to nullity or a counter-claim to nullity: 20000€. Do not tell me this is in favour of SMEs.

    It is true that no question relating to Brexit has been brought forward, but the question raised by the FGCC in Point 106 is indirectly brought up.

    It remains that trying to push the UPCA without an amended Art 7(2) UPCA is also posing a constitutional problem. How can a treaty be amended by a purely administrative committee?

    The German government should also explain why countries like Poland and the Czech Republic, although having signed the UPCA will not ratify it: because it will be deleterious for their industry.

    To Me Mollet-Vieville: the idea of an EU regulation on patents is an old one, but it requires unanimity and this is not achievable, hence the concept of enhanced cooperation. There were four drafts on a patent for the European community in the 60-70ties, and the Luxembourg agreement of 1975 on a Unitary Patent was dead borne.

    On the other hand, is there a real need for a true supranational jurisdiction for patent litigation? The number of average validations of EP granted by the EPO lying between 5 and 7, does not justify the setting up of a separate jurisdiction, which on top of it can only be financed by the fees it levies.

    The only technical area which might benefit from such a supranational jurisdiction is the pharmaceutical industry which validates in much more countries. This industry can certainly afford multiple litigations.

    For trademarks it might be more justified to have a centralised approach, but is the experience with the EUIPO and the CJEU as positive as it was hoped when it was set up?

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