The German Bundesrat approved the Unified Patent Court Agreement and its Protocol on Provisional Application (PPA) earlier today, three weeks after its approval in the Bundestag. To complete the German ratification procedure, the bills will have to be signed by the government and Bundespräsident and published in the Federal Law Gazette.

The completion of the German ratification procedure would mean a very important hurdle for entry into force of the Unitary Patent system has been taken. However, is it possible and it seems likely that in the upcoming weeks a complaint will be filed with the German Federal Constitutional Court (FCC) against the UPCA. The Foundation for a Free Information Infrastructure (FFII) has been preparing such complaint. Also, patent lawyer Ingve Stjerna could be planning a new action after a complaint he filed in March 2017 was upheld partly by the FCC earlier this year.

In 2017, the FCC requested the German Bundespräsident not to sign the UPCA ratification bills which had just passed through parliament at the time, as long as it had not ruled on Stjerna’s complaint. It is not clear whether a similar request from the FCC will follow automatically when new complaints are filed.

If no complaints are filed, two more countries will have to ratify (or otherwise consent to) the PPA for the provisional application phase to come into force. In that case, the provisional application phase could start in the first quarter of 2021 and the UPC could open late 2021 or at the start over 2022.

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17 comments

  1. I am always astonished afresh how powerful the UPC lobby is. They can push governments and parliaments wherever they want. And all of this just to fill a few pockets. Amazing. Poor old Europe, your SMEs are going to bleed ….

  2. Of “If no complaints are filed, two more countries will have to ratify (or otherwise consent to) the PPA for the provisional application phase to come into force”, what does the Vienna Convention on Treaties say?

    Vienna Convention on Treaties, Article 24, Entry into force says:

    24.1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

    • But, the requirement for UK ratification, that the UPC Agreement provides, has not been satisfied.

    24.2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.

    • But, all the negotiating states, which include the UK, have not given such consent.

    • Could the UPC Agreement be amended to allow entry into force without UK ratification? Article 39 allows amendment?

    Article 39: A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide.

    • It requires agreement between the parties. That includes the UK.

    • Is there such an agreement?

    1. Does the withdrawal of a ratification have the effect of creating a legal fiction that the ratification never happened?

      1. Perhaps your question can be answered by considering the hypothetical situation in which ALL other Contracting States to the PPI withdraw their instruments of ratification / consent to be bound by the Protocol. Such a situation would then pose a related question, namely: can an international treaty enter into force if NONE of the Contracting States to that treaty are willing to be bound by its provisions?

        It should be clear from this alternative scenario that it is the CURRENT (and not the historical) status of the ratification of a contracting party to an international treaty that has legal significance.

        Of course, if you think that a different meaning emerges from application of the methods of interpretation permitted under the VCLT to Article 18 PPI, then I would be interested to hear your explanation of how one could reasonably arrive at such a different meaning.

  3. The UPC lobbyists might have won a battle, but certainly not the war.

    Why do you not believe, the UPC is not good for European SMEs? You are not receptive to lobbyism, that’s your problem.

    In the accompanying note to the new ratification bill, the German Ministry of Justice went as far as to claim that it will be cheaper for a SME to go before the UPC than before a national court in case of patent litigation. Hard to believe, but true. How can civil servants in charge of the administration of justice can write such a non-sense? At least it is clear who held the hand of those civil servants.

    The writers did not even realise how ridiculous this stance is. Why does Germany need an international, rather expensive, court in order to give SMEs cheaper access to justice in cases of patent litigation? I fail to understand, but I am also not receptive to lobbyism. It also shows that the MPs have ratified with both eyes shut.

    As far as the VCLT is concerned, not only Art 24 VCLT could apply. It is also necessary to look at Art 31 and 32 VCLT.

    As far as Art 24VCLT is concerned, UK has only send in a “verbal note” explaining that it will not participate to the UP/UPC system. I am not a specialist of international public law, but I do not equate “not participating” with a proper withdrawal of the ratification.

    As 31 and 32 VCLT goes about interpretation of a treaty. Art 31VCLT was mentioned in the explanatory note for the new ratification bill.

    Art 31(1) states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

    When interpreted in good faith Art 7(2) UPCA makes it clear that a section of the Central (?) Division will be located in London. There is no need to interpret this text, it is crystal clear.

    According to Art 31(2,a) the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty.
    Art 31(3,a) adds that “There shall be taken into account, together with the context any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”.

    Where is the agreement of the parties to the UPC accepting, at least provisionally, that the duties devolved to the London Section will be distributed between Paris and Munich?

    Where is the agreement that it can be decided under Art 87(2) that the location of the London Section can be decided when the UPCA will be revised by its Administrative Committee?

    It is also difficult to see how the transfer of the London Section is to bring the UPCA into line with an international treaty relating to patents or Union law. Art 87(2) only applies after all contracting states have individually ratified international treaties relating to patents or amendments to those.

    Adaptation of the UPCA to those new treaties, or their amendment, does not need a separate new ratification of the UPCA. Art 87(2) does not allow a different interpretation under the VCLT. One example: some amendments of the EPC which could have an influence on the UPCA could be incorporated into the latter after ratification by all the contracting states of the amended EPC. No need to have a new ratification of the UPCA. No less, but no more.

    Art 32 VCLT specifies that “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when the interpretation according to Art 31:
    (a) leaves the meaning ambiguous or obscure; or
    (b) leads to a result which is manifestly absurd or unreasonable.

    The text of Art 7(2) UPCA is anything but ambiguous or obscure and does not lead to a result which is manifestly absurd or unreasonable.

    To me it is rather the interpretation of the UPC lobbyists who held the hand of civil servants in the German Ministry of Justice which is manifestly absurd or unreasonable.

    One well known French lawyer and staunch UPC lobbyist went as far to claim that Brexit was a gift which allowed to shift the duties of the London Section to Paris. German lawyers and UPC lobbyist did not agree and in the explanation note Munich appeared next to Paris…..

    Rather than to complain about software patents, a new complaint to the German Federal Constitutional Court could be along the line that the entry into force of the UPCA under the interpretation of the German Ministry of Justice could lead to a denial of justice. By merely transferring the duties of the London Section to Paris or Munich would deprive a German citizen to its right to have its case decided by the “appropriate” judge. The notion of the “appropriate” judge is very important in the recent legal German tradition.

    To sum it up, which user of the European patent system will want to put even a portion of one of its European Patent to such a wobbly and uncertain system? Patents are for business and not to fill the pockets of lawyers. But should you put one question to two lawyers and you will get three opinions! That is not what we need for the European patent system!

  4. Well taken, “Article 24 Vienna Convention, anyone?”.

    To all this one could also add that Article 18(1) of the Protocol on Privileges and Immunities of the UPC reads (emphasis mine):

    “This Protocol shall enter into force 30 days after the date on which the last of the four State Parties – France, Germany, Luxemburg and THE UNITED KINGDOM – has deposited its instrument of ratification, acceptance approval or accession.”

    Unless I am mistaken, this condition will not and cannot be fulfilled due to the withdrawal of the UK. How, then, can the Protocol enter into force? Or is it contemplated that the UPC will not be afforded the protections foreseen in the Protocol?…

  5. I think that Article 56 VCLT applies to UK as well.

    I am also curious to see how Art. 3.1 PPA applies without the UK.

  6. Agreed about 7(2), but is it perhaps susceptible to a fudge once the court is up and running?

    The UK ratification withdrawal looks pretty unequivocal. the UPC committee thinks so and it was certainly the intent of the UK government: https://www.unified-patent-court.org/news/uk-withdrawal-upca.

    The Vienna treaty envisages disruption due to changed geopolitical circumstances with time, as you might expect (see Article 18(b) as regards what can happen during an “undue delay”). Brexit is a changed geo-political circumstance par excellence and there has certainly been an undue delay in the implementation of the UPC. So it would be realistic to expect that ratifications can come and go.

    Not much interpretation of these articles is needed for pursuit of the UPC at this stage to look a bit murky – for the sake of renegotiating the location of the life sciences branch and the removal of the UK, is it worth having credible doubts linger about the legitimacy of the court under international treaty.

  7. According to the General Secretariat of the Council of the European Union (the “depository”), the UK has withdrawn its ratification and the withdrawal has become effective on 20.07.2020.

    For the UPCA to enter into force, cf. Art 89(1) UPCA ,13 ratifications are required and among those the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place. As far as the ratification of the UPCA is concerned, Italy could easily replace the UK.

    However the UK is still named expressis verbis not only in Art 3.1 PPA but also in Art 18 PPI as being required to ratify the UPCA. As far as the PPA and the PPI are concerned, UK cannot be replaced by Italy as it is possible for the UPCA. This could be possible under the VCLT if all contracting states would make a common declaration replacing the UK by Italy in both the PPA and the PPI.

    However, not only Italy but also The Netherlands and Ireland have uttered claims to the duties of London Section, so that a common declaration and also a corresponding agreement on the “provisional” transfer of the duties of the London Section to Paris or Munich are no more than wishful thinking on the side of UPC lobbyists in France and Germany.

    From whichever side one looks at the question, the problem of Art 7(2) UPCA remains and should have been resolved before any German ratification. But the UPC lobbyists pushed hard enough to get the German Parliament to ratify. .

    In other words, the mess is quite perfect. Should Germany indeed deposit its instrument of ratification a start of the UPC at the end of 2021 or at the beginning of 2022 is still no more of than wishful thinking.

    I am looking to get some compelling arguments why it actually could be so. By compelling I mean something more serious than wishful thinking as it is presently the case be it from the lobbyists or the Preparatory Committee of the UPC.

    Last but not least, even if the UPCA should enter into force as foreseen its compatibility with Union Law is still not certain. It is claimed to be, but it is a claim which as compelling as to the present wishful thinking of UPC lobbyists. Why the compatibility of the UPCA with Union Law has never been tested? The whole UP/UPCA might blow up for this reason alone. And I am not even thinking of the role of the Boards of Appeal of the EPO is revoking or limiting an asset valid in the EU or parts of it.

    It does not appear enough to allow prejudicial questions to the CJEU for it to be so. Prejudicial questions can only be put to the CJEU if they come from a jurisdiction which is considered as being part of the legal system of EU contracting states. Some doubts are allowed as far as the UPCA is concerned.

  8. All good Attentive Observer, but don’t write off Article 89(1) just yet. The words “the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place…etc” refer to the status the UK had in the past (emphasis on “had”).

    Italy was never the third Member State at the times stipulated, but the UK was.

    Bon chance.

    1. Dear Article 24 Vienna Convention,

      What is a signature worth when the ratification has been withdrawn.
      I simply mean that a compromise could be reached by the signatory states and replace UK by IT.

      But it does not solve the problem with Art 7(2) UPCA! This time bomb is ticking, whether the pro UPC lobbyists like it or not.

  9. “Adam Smith: what he thought, and why it matters” is a recent and important book by Jesse Norman, who is both a philosopher and a British Conservative MP. Who knew that which Norman so eloquently explains, namely that Smith, the inventor of the notion of the “invisible hand” that regulates markets and so brings prosperity to all, was also the guy who first fingered, with unassailable reasoning, lobbying, and crony capitalism, as the twin evils that are the most likely to destroy prosperity.

    Smith urged the absolute necessity of Fair Taxes and a reliable system of justice for everybody under a robust Rule of Law administered by a strong State sector. The neo-liberal advocates of the minimal State are deplorable to me and would be deplored by their greatest hero Smith, the father of modern economics and the one they invoke to justify their greedy, anti-social and self-enriching activities.

    When will the voters wake up, and insist that their amoral and spineless representatives in Parliaments do their job properly (instead of taking the path of temptation, doing just what the lobbyists call on them to do)?

  10. To be less cryptic there are two new complaints before the German Federal Constitutional Court. This was to be expected. It is just surprising that it came so quickly.

    One is probably from the FFII which had announced to do so. However complaining about software patents is most probably a no go before the GFCC.

    The other complainant is unknown, although it is not too difficult to guess who it could be.

    There are other reasons which look more promising for a constitutional complaint. Since 2017 UK has withdrawn and the new ratification bill, more exactly the explanatory note to the MPs, simply dodged the problem of Art 7(2) UPCA. It claimed, probably led by some lobbying lawyers, that it is sufficient to “provisionally” transfer the duties of the London Section to Paris and Munich and arrange the lot at the first revision of the UPCA.

    I have explained why this is at best wishful thinking and no more than denial of justice. Any case which should have been going to a London panel of the Central division will be decided by another panel which has not been given authority to decide on those matters according to the UPCA and laid down in Annex II of the UPCA and integral party of it.

    Unless the GFCC has been invaded by the same lobbyists as the German Federal Ministry of Justice, this is a point which cannot be let go by the GFCC. The notion of “legal judge”, in German “gesetzlicher Richter” is something which is very important in Germany. I doubt and hope that the GFCC will close a blind eye to this problem.

    The problem of the PPA and PPI with its mention of UK is also not to be forgotten.

    Point 106 of the March decision, possible collision between supremacy of Union Law over the German constitutio, has been totally ignored by the GFMJ and its writers and the lobbyists behind it.

    Some of the points raised by Mr Stjerna in his first complaint have been dismissed as not being properly substantiated, but this might be an incentive to provide better reasons, and it is easy to see some.

    The MPs have been willingly misled by the GFMJ and the lobbyists holding the hands of its civil servants. It is important that German MPs are told clearly which mess they have occasioned. I hope they could be informed of all the comments published on this blog.

    I would add that not only MPs are amoral and spineless representatives as exemplified here, but the same can be said about the members of the Administrative Council of the EPO. They are gullible for everything presented to them by the EPO administration.

    I would thus extent Max Drei’s comment to the EPO as well. The previous head of the EPO, as well as his successor are staunch supporters of the UPC. The EPO has never failed to support the UPC, one wonders why.

    I am for European integration in patent matters, but not in the form of filling pockets of lobbyists which only consider their private interests and those of the big industry they advise.

    1. Do not forget Article 6 ECHR, as well as the case law of the ECtHR on that Article:
      “In the light of the principle of the rule of law, inherent in the Convention system, the Court considers that a “tribunal” must always be “established by law”, as it would otherwise lack the legitimacy required in a democratic society to hear individual cases (Lavents v. Latvia, § 81; Biagioli v. San Marino (dec.), § 71)”.

      We can therefore conclude that the EU’s key players, such as France and Germany, have lost interest in adhering to the rule of law.

      It has long been clear that, despite EU Member States together forming a majority on the EPO’s Administrative Council, the AC has been willing to tolerate the EPO’s frequent and flagrant breaches of core principles under the ECHR and EU law. This is despite the EPO being based in the EU, employing EU citizens and taking decisions upon legal rights that are governed by both EU laws and national laws of EU Member States.

      However, establishing a brand new international organisation in a manner very clearly not permitted by either the Vienna Convention or ECHR takes to a whole new level the tactic of turning a blind eye to obvious breaches of core rule of law principles upon which the EU is supposedly based.

      So how is it that so many key players in the EU been persuaded to abandon even the appearance of adherence to the rule of law? Cui buono?

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