The German Bundestag has approved draft legislation to ratify the Unified Patent Court Agreement. 571 representatives support the UPCA, 73 voted against. It means the necessary 2/3 majority was easily achieved. There were three abstentions.

The vote is an important step towards introduction of the Unitary Patent system, which can enter into force only after Germany has completed the ratification procedure. The draft legislation will now go the Legal Committee of the Bundesrat and could be voted on by the Bundesrat in December (UPDATE 27/11: according to the UPC Preparatory Committee this is expected to take place on 18 December 2020). It will also have to be signed by the Bundespräsident, before Germany can formally deposit its instrument of ratification with the secretariat of the European Council and finalize the procedure.

It is the second time Germany is trying to ratify the UPCA. In 2017, after the Bundesrat’s approval, a constitutional complaint against the previous ratification bill was filed; earlier this year the German Federal Constitutional Court declared the ratification invalid because only 35 member of the Bundestag were present during the vote.

It is not unlikely that another constitutional complaint will be filed this time.

Legal Committee

The UPCA draft legislation had been discussed yesterday by the Committee for Legal Affairs and Consumer Protection of the Bundestag, which recommended its adoption. The AfD was the only party voting against. Its request for a public hearing because of the “abundance of critical voices in literature about the agreement and the uncertainties due to the Brexit” was turned down.

The CDU/SCU stated that the primacy of Union law provided for in Article 20 of the UPCA is not in conflict with the German constitution or the Federal Constitutional Court’s competence to review compliance with minimum constitutional standards in the case of a transfer of sovereign rights to European or intergovernmental institutions.

The SPD stated that the distribution of competences of the Unified Patent Court, particularly those of the London division with a view to the UK’s exit from the European Union, can be regulated properly in the future in agreement.


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8 comments

  1. A black Thursday for legal correctness, and a bright Thursday for lobbyists of all kind.

    The decision is a legal disgrace and was only achieved by not giving the MPs the true and correct information. But this was to be expected. The EU has always been a playground for lobbyists, and we have a further example of it. .

    In German one could say: die Abgeordneten wurden hinter das Licht geführt und deren Augen mit Dreck beschmiert, freely translated MPs were misled and lured into a decision which they do not understand the ins and outs.

    The last word is not yet said, and even if the GFCC should dismiss a further complaint, the problems with the UPCA, starting with Art 7(2) UPCA, will backfire sooner or later.

    Do the promoters of the UPC honestly think that the other member States will simply accept the transfer of the duties of the London Section to Paris and Munich? The three contenders for the new seat will certainly be heard before long.

    There also many other open issues for the UPCA. The first party to lose in front of the UPC will find a way to go to the CJEU, which has never been asked whether the UPCA is in accordance with EU law. It is claimed that it is, but nothing is less sure.

    My grandfather used to say: “If you put your head in the sand do not wonder when your behind is getting smacked”. I hope he will be right once again.

  2. @Attentive Observer

    “The first party to lose in front of the UPC will find a way to go to the CJEU, which has never been asked whether the UPCA is in accordance with EU law. It is claimed that it is, but nothing is less sure.”

    Or the ECHR for article 6 violation, as some lawyers have already suggested.

    The probability that it will explode at the first case will be pretty high.

  3. And by the way, the “democratic” parties changes their votes because they did not want to vote with the AFD.

    If the AFD would have voted ABSTAIN, the FDP, DieLinke and maybe the Greens would have voted against.

    So the AFD case seems to be a problem of german politics.

    But Attentive Insiders know we were really close of not reaching the 66% quorum.

  4. I hope that some interested party will make a constitutional complaint not only against the UPCA but also against the granting procedure of the UPs. After all, the UP is a EU-right but there is no *judicial* redress against a decision of the EPO rejecting an application (similar to the 4 complaints already on the docket of the BVerfG).
    Since the BoA themselves no longer pretend to be independent (“we don’t want to decide, because we fear reprisals…”) this might be an promising angle of attack (the same goes of course for both sides in opposition proceedings…).

  5. Fragender puts the right accent on a fundamental weakness of the whole UPC system.

    As at least during the transition period when an opt-out is possible, an application designating an EU/UPC contracting state is not yet an EU right or asset and only becomes it if the proprietor applies for an UP.

    If after grant, a UP is requested, any opposition against a UP is indeed becoming an action against an EU right or asset. How can a body fully outside the reach of the EU decide on an opposition against an EU right or asset?

    After the transition period all EP applications, which are automatically designating one or more UPC/EU contracting states, are from the outset to be considered as an EU right or asset. The above question will become even more crucial and will have to be resolved.

    The question was also indirectly raised in Max Drei’s comment of November 26, 2020 at 6:30 pm: “when [in 1973] the nations of Europe happily set up a communal patent granting system but baulked at setting up a communal patent rights enforcement regime. Were their reservations well-founded, back then?” My answer is yes.

    I am not convinced that the answer will necessarily be given by the GFCC, but rather by the CJEU. If the GFCC gives the UPC a new blow, it might bring an end to the UP and UPCA sooner. One way of dealing a blow to the UP/UPC system would be to decide on the independence of the boards of appeal. There are still four complaints pending before the GFCC.

    It was not wise not to ask the opinion of the CJEU when the negotiations on the UP/UPCA were finalised. It had been done for EPLA with the known result. One wonders why all the promoters of the UP/UPCA were frightened to do so? Did they expect a negative reply? After Brexit it would have been a good opportunity. By the way, the situation with respect to the UK is still not clear and still represents a threat to the UP/UPC independently of Art 7(2) UPCA.

    At least some specialists in EU and constitutional law should have been consulted at the time. The mere statements of private lawyers having a big finger in the pie was not enough. They only had their private interests in mind and this is still the case.

    Everybody knows who has been holding the hand of the civil servants in the Federal Ministry of Justice when it drafted the explanatory notice for the new ratification bill.

    Ignoring problems is not solving them. It reminds me of a child who thinks when he closes his eyes he will not be seen by the rest of the world, If the child would then be run over by a car when crossing the street, I would feel sorry for the child and the car driver, but I would not feel sorry for all those lawyers who are pushing the UP/UPC with only their private interests in mind.

  6. If you read French, read ESOMA’s constitutional complaint in Belgium of 2015 (FFII sister organisation) on point 3 “C. Troisième moyen: L’OEB est une administration irresponsable devant la Justice”

    http://esoma.wikidot.com/forum/t-1162188/unitary-patent-challenged-at-the-belgian-constitutional-cour

    “Ce manquement a été relevé notamment par l’Avocate Générale Juliane Kokott le 2 July 2010 dans l’opinion de la Cour Européenne de Justice 1/09 (paragraphe 71):
    “Dans les faits, les décisions de l’OEB concernant les brevets ne peuvent actuellement être revues que par les chambres d’appel à l’intérieur de l’OEB, excluant tout recours devant une cour externe.”
    Dans son intervention, Ms Kokott suggéra des solutions pour résoudre ces défauts (paragaphe 73):

    “Ces pré-requis peuvent être satisfaits de différentes manières. Une possible extension des compétences de la future Court des Brevets qui incluerait les procédures administratives contre les décisions de l’OEB est une des options qui peut être contemplée.”
    Nous notons que dans le texte de loi attaqué aucune disposition n’a été prise pour régler ce problème de respect du droit par l’OEB, et que par conséquent, toutes les décisions de l’Office concernant les Brevets à effet unitaire ne peuvent être traduites devant une cour de justice.
    Nous notons également que des plaintes similaires relatives à la violation de l’Etat de Droit par l’OEB émanant de demandeurs de brevets ont été déposées en Allemagne, et sont toujours en attente d’un jugement (AR 2435/13, 2 BvR 421/13, 2 BvR 2480/10).10”

    6 years later, those decisions are still “pending” in Karlsruhe.

    And the politicians in the Bundestag were well aware that it will bite back.

  7. @ zoobab

    One should not confuse the position of the Advocate General with that of the CJEU. Even if the CJEU often follows the position of the Advocate General, it can differ.

    The Advocate General suggested no less than to have the first instance decisions of the EPO to be reviewed by the UPC. This would mean that the Boards of Appeal of the EPO would be made redundant. If such a suggestion would be adopted, it would imply a drastic amendment of the EPC, if not its disbandment.

    I am not sure that all the other member states of the EPC which are not member states of the UPCA would agree as it would end up with the disbandment of the EPO. This idea would certainly please the staunch supporters of the UPC, and go quite further than their boldest dreams.

    Combined with a complete dematerialisation of the EPO as it is presently envisaged, it is not a mere dream, but it could become true and all the lawyer firms pushing the UPC would be gloating. Lawyers would in the end have their revenge over patent representatives. Representatives could be left with the grant procedure, but anything having to do with validity of European Patents would become the reserved domain of lawyers.

    The Advocate General is however right when she implies that the EPC is not compatible with EU Law. From its inception this was not the aim of the EPC as it was a convention meant to be open to non-EU member states. And this was precisely the reason for the success of the EPO.

    The Advocate General goes even one step further in that she denies that the Boards of Appeal can be considered as a judicial instance. This goes a bit too far to my liking.

    The Advocate General is however right when she queries the independence of the Boards of Appeal. I am eager to see what the GFCC will have to say on this topic.

    In view of the fundamental incompatibility of the EPC with EU Law, trying to combine the EPC with EU Law as is done with the UPCA is doomed to fail. This might actually be the reason why all the promoters of the UPCA never wanted it to be checked as to its compatibility with EU. The time bomb is nevertheless ticking, whether Germany has ratified the UPCA or not.

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