Kluwer Patent Blog

33 comments

1. […] with the departure of the UK from the EU and the Unitary Patent project, which […] has made the UP and UPC less attractive for the industry

   Don’t flatter the British.
   The attractivity lies in reducing the number of national parallel litigations, which will still happen with the UPC.
   The death of the UP is solely in the bad drafting and consequent pushing of legally doubtful contract past the democratic institutions, while at the same time providing these institutions with lies, false promises.
   Furthermore the problematic removal of democratic oversight for amending the contract.

   1. But most patents are not litigated. Of those that are, only some are litigated in multiple jurisdictions. Of those that are litigated in multiple jurisdictions, the litigation may be settled across multiple jurisdictions before reaching court in all of them. Those that reach court in multiple jurisdictions often have those jurisdictions spanning continents.

      You have to remember many EP patents are only validated in a few countries. Maybe only DE, or UK, FR, DE. That ought to be a real concern of the EU.

      For the vast majority of patent applicants (especially SMEs which the EU is supposed to be supportive of), the attraction of the UPC is the reduction in translations on grant which could be achieved via the London Agreement and/or advances in machine translations, and a single central renewal fee after grant payable to the EPO which the EPC states could agree.

      If the UPC package is too hard to swallow, then why doesn’t Europe break it down into parts and swallow the easy bits first. Phasing out post grant translations is happening anyway and central renewal fee collection could be agreed. Neither of those things is controversial, neither raises constitutional questions. Both would be available to the EPC 38 rather than the EU27.

      I realise central litigation is sexy, but central and cheaper renewal fee payments would be of more practical benefit to many

      1. Why EPO needs three different languages? Only English is commonly spoken and understood in Europe. While giving up post grant translations, simultaneously official German and French EPO languages should be relinquished.

2. What I find a bit outrageous independent of the details of the matter at hand is how easily the “will of the people” as expressed by 2/3 majorities in both chambers can be ignored and disregarded by what seems to be a murky gentleman’s agreement.

   Why is there no preliminary injunction issued by the court preventing the Federal Presiding form sigining the bills? Then at least we know that it is really the intention of the senate and not perhaps just some clerk in the court or a single judge pretending to speak for the senate who made a phone call.

   1. This is a discussion we already had.
      The GFCC does not issue injunctions except if really necessary.
      They are hesitant to interfere in the legislative power, thus they kindly ask to NOT sign, when there is a probable chance the complainant wins.

      If they would order to not sign, they would interfere in the legislative.
      Which would be beyond the official powers of the constitutional court .

      And to respect the separation of powers, the German Bundespräsident does not sign after such a request but awaits the outcome of the complaint.

      1. Sure Kay, this is the status quo. But I am wondering whether this modus operandi is worthy of a democracy. There is no accountability whatsoever and we, “the people” do not even really know if what is said by the handful of persons involved is true. My point is that our federal government, our representatives representing about 2/3 of the population as well as the states have unambiguously expressed their will to have a law in force, but all of this can be rendered vain and the will of the people can be denied or the implementation thereof significantly delayed just like this? What if this were a law where time is of the essence?

         Do not get me wrong, of course it should be possible that a bill can be stopped by the president or the constitutional court, but out of respect for me and for “my representatives” in the Bundestag I think that there should be a written decision or some sort of official paper trail at least.

         1. I write to support Peter Parker’s accountability point. To frustrate the will of Parliament requires a good reason. Here, we are told, the given reason is because “two complaints have been filed”.

            Are you serious? On that logic, if me and my friend decide we don’t like a piece of legislation up for Presidential signature, we can both work up and then file a plausible complaint. And that, by itself is enough? Come on, FCC, engage the brain and do your job properly, in a way that preserves respect for the institution (rather than lazily and carelessly squanders it).

            I know, I know, everybody these days recites in their defence the mantra “Quick and Dirty”. But really, there are still occasions when that attitude really is not appropriate, and does not even begin to cut the mustard.

3. Just a minor clarification: The first UPC complaint was not merely “partially upheld”, but was a full success. This should be evident to everyone who has bothered to read at least the first two pages of the FCC decision.

   Origin and purpose of this belittling spin are clear, just as the mantra-like emphasis that this decision relied “on formal grounds”, insinuating that the UPCA substance was not objected to by the FCC. Then could you please explain why the FCC has again requested that the ratification proceedings be suspended, although the formal deficiencies were apparently removed?

   1. It was actually partially upheld. Please read the full decision. Many of the grounds Stjerna had put forward were rejected, in particular, those many considered as being likely successful such as the appointment proceedure if the judges.
      https://www.katheraugenstein.com/en/will-the-unified-patent-court-be-established-an-analysis-of-the-decision-of-the-bundesverfassungsgericht/
      or if you would like to watch a video:
      https://www.katheraugenstein.com/en/video-on-the-decision-of-the-bundesverfassungsgericht/

      The only thing that was left open was the compliance with European law, which I believe should not have been an issue, until the FCC has interfered with the CJEU here:
      https://www.katheraugenstein.com/en/the-german-federal-constitutional-courts-new-scepticism-about-europe-why-it-wrongly-contradicts-the-court-of-justice-of-the-european-union-and-what-this-means-for-the-unified-patent-court/

      1. As a litigation lawyer you should be familiar with the fact that procedural law allows you to cite several reasons for achieving one and the same procedural aim. If only one of these satisfies the court, the complaint is fully granted.

         This is what happened in proceedings 2 BvR 739/17. Several reasons were assserted to achieve the requested nullification of the ratification legislation. One was accepted by the court, therefore nullification was granted as requested and to the full extent requested. In my legal cosmos I would pretty much call this a full success. Or do you see a rejection anywhere in the operative provisions of the FCC’s decision?

         I would suggest that you stop trying to take people for a ride and start engaging in a truthful and open-minded discussion instead of pushing shallow propaganda.

4. First thought that comes to my mind is that while lobbying power increasingly sways the outcome in the legislative (Berlin) and executive (Brussels) pillars of a Three Pillar democracy running under the Rule of Law, it is (still, at least in Western Europe) less effective at setting the outcome at the FCC in Karlsruhe, within the judicative pillar of our democracy. I wonder though, how long before the courts come under the influence of the most lavishly funded lobbyists.

5. A not unsurprising development – the same causes as the last time were potentially liable to have the same consequences.

   It will now be amusing to see the same mantras repeated again and again from the same quarters – the complaints will be dealt with quickly, they will be summarily rejected without going into the merits, the UPC will be “up and running” by the end of the year, et caetera, et caetera.

   And of course, not one bit of progress has been made in the meantime regarding the issues which have been repeatedly pointed out elsewhere, notably the fact that the Protocol on Privileges and Immunities EXPLICITLY REQUIRES the United Kingdom’s ratification, which will never come about.

6. Courts are there to uphold the applicable law and constitution.
   Legislators are there to make the law.
   The laws legislators make have to fit with the constitution.
   If the laws legislators make do not fit with the constitution, then they can expect constitutional courts to find so, and to send the legislators back to do their homework again.
   If the legislators cannot make their laws fit the constitution there is the option of changing the constitution – but this requires both political will and bravery – because constitutions are powerful things inducing powerful emotions.

   Of course some persons in the executive of a country (not Germany) may find such restraints inconvenient and prefer to follow blatantly illegal procedures requiring a unanimous chastisement from the highest court in the land.

   Such persons tend to arbitrary positions (I won’t say decisions), saying one day they are for something and the next they are against. Such persons might even see their brother say “yes” to something good, and then themselves say “no”. [Dimmer brothers are sometimes jealous].

   Such persons have a tendency to lie, subjecting the populace of their country to gaslighting on an industrial scale to achieve their ill-conceived and self-destructive dreams (I won’t call them plans).

   Such persons tend not to think of the welfare of their citizens, but rather see their citizens as meat for their vainglory.

   No country deserves such such flip-flopping flim-flam sociopathic politicians unconstrained by any thoughts of legality. A country with no respect for its constitution is headed for trouble. Pity my country.

   So well done Germany. I am extremely disappointed that the first case did not exhaust the matter. But rejoice that a constitution is being taken seriously.

7. I see what you did there, Jim. But I’m right with you there as, I think, should be every self-respecting and upright lawyer or patent attorney. As you say: WELL DONE GERMANY

8. Even if the BVerfG dismisses these complaints, or upholds them in such a way as to permit a further attempt to ratify, surely the delay is going to do terminal damage to this attempt at a common patent and court system? It is a great pity that the EU got involved (interfered) in this process back in the early 2000s, when it proposed the community patent and then claimed that the adoption of the Brussels Regulation made the proposed optional protocol to the EPC (EPLA/EPLC common court arrangement) unlawful without EU involvement. Readers may recall that Germany was not involved in that proposed optional protocol. That position (illegality under EU law) was something I personally never believed withstood proper analysis, but some states were put off that route as a result of the EU’s bald assertion of illegality. If that project had been allowed to proceed, we could by now have had 15 years of streamlined European patent litigation. As it is, it may never happen. Perhaps the UK and Switzerland (who were the main proponents of the EPLA/EPLC system) and other non-EU EPC countries should now set up their own common patent court system and leave the EU countries to make do with their purely national litigation systems. Speaking as a Brit, there would be a rather delicious irony about such a result.

   1. @ Alan Johnson,

      That you would have like EPLA to be in force is no surprise as the UK could still participate in spite of Brexit.

      The UPC suffers from a birth defect which is difficult to overcome: trying to combine an open convention not limited to EU member states as far patent granting is concerned with a closed convention about the use of the title so granted and only valid for some EU member states. I cannot see how this two extremes can be reconciled.

      That EPLA could have been a solution to this problem is certain as it was an open convention not limited to EU member states. The CJEU was right in considering the EPLA unlawful under EU law. You might therefore be quite solitary in thinking “That position (illegality under EU law) was something I personally never believed withstood proper analysis”. At least the present proponents of the UPC were of a contrary opinion to yours. Just think what Mr Tilmann wrote when opinion C 1/09 was issued, in order to claim later that Brexit could not withhold UK to participate to the UPCA. A weathercock would not act differently…..

      You still would like to see a kind of EPLA “light” limited to non-EU member states to emerge. But if the usefulness of the UPC was doubtful with on average at most five validations in its member states, the situation would be worse with an EPLA “light”.

      Based on official figures of the EPO, the number of patents applications originating from EU members states represent 45% of all applications at the EPO, whereby 34,2 % stem from EU member states and 32,9% from UPCA member states. Non-EU member states account for 8.8 % of all EP applications, UK and Switzerland representing 8% of those. The granted patents correspond roughly.

      Do you really think that there is a need for a EPLA “light” for 8,8 % of granted EP? What good would it bring besides the hope of filling the pockets of a firm like yours?

      Europe at large has been quite happy with the system as it stands. The UPC or the EPLC is only useful for lawyers firms and certainly not for European Industry, and especially not for European SMEs. .

      On the other hand I have to acknowledge your perseverance with trying to pursue a project which is as useful as trying to sell a bra to a policeman.

      1. The CJEU did not declare the EPLA unlawful, but rather considered a very different agreement. And the ruling did not touch upon the basis the Commission said the EPLA (of circa 2002) was unlawful, which was due to the adoption of 44/2001. But anyway this is all ancient history. The question is what next? The present UPC project seems sure to have at least a major delay unless some abridged procedure can be used in the BVerfG which is not something I am qualified to comment on, but seems unlikely based on last time. In reality we will all probably continue with our own national systems for the foreseeable future. This is a matter of regret since it was not what most of industry wanted. The loss of the unitary patent is even more of a loss for industry, although the loss of the UK to that system was already a major blow which greatly devalued the concept. Hopefully attempts at reform will continue, but that is likely a matter for the next generation, not mine….

9. It does not come as a surprise that for the second time the GFCC asked President Steinmeier not to sign the ratification bill.

   The only effect of the cancelation of the first ratification bill was that this time the quorum was achieved, but nothing more. The question of supremacy of the EU law over the German Constitution, cf. Point 106 in the decision of March 2020, has been completely ignored in the explanatory note of the ratification bill.

   Other points, like the independence of the judges and their designation have been dismissed as not being sufficiently substantiated. This can be considered as an invitation to better substantiate those points. As the GFCC had a good reason to repel the ratification bill, it was not necessary for it to go much into detail with other reasons.

   The present situation is different from the first time as in the meantime Brexit occurred. Ratifying a text comprising the famous Art 7(2) UPCA mentioning London as location for a section of the Central Division of the UPC was inviting trouble. This point is independent of the problem of the PPA requiring UK to ratify.

   Simply claiming, and this in blatant contradiction with the Vienna Convention on the Law of treaties, that the duties of the London Section can be provisionally transferred to Paris and Munich, was setting off a time bomb. In Germany the notion of the statutory judge is very important. Any complaint can only be judged by the competent judge and the designation of the judge has to occur in accordance with set rules.

   It is thus an illusion to state that the judge who was meant to sit in London can be replaced by a judge sitting in Paris or Munich. The distribution of tasks between the various locations of the UPC is defined in Annex 1 of the UPC which is at the same time part of the latter. A unilateral change to the provisions of Annex 1, and the claim that this can be healed by later applying Art 87(2) UPCA was simply an interpretation which is not reasonable.

   This interpretation goes manifestly not only against the German Constitution, but also against the European Convention on Human rights. In its Art 6 it is stated that “everyone is entitled to a fair and public hearing …. by an independent and impartial tribunal established by law”. By transferring the duties of the London Section to Paris and Munich, the so created tribunal is anything but not established by law.

   I can agree at a pinch with Peter Parker that the quorum was achieved, but the members of Bundestag and Bundesrat were wilfully misled in the explanatory note. They agreed on ratification without having received the necessary information. The explanatory note for the new ratification bill expresses no more than the wishes of the lawyers lobbying for a quick start of the UPC, as they expect to fill their pockets. That the lawyers involved get on top the support of the European Commission is adding insult to injury.

   It is surprising that people of this kind, actually all learned lawyers, some of them even holding the grade of Professor, e.g. Mr Tillmann not to name him, can come up with such drivel. A first year law student can immediately see that the whole argumentation is not worth the paper on which it is printed. That the German Federal Ministry of Justice accepted to play this game is a disgrace.

   It is good that the GFCC has a second look at the UPCA. That it might end up with the UP and the UPC never seeing the light is not to be dismissed. It is good that there is an institution like the GFCC.

   1. Good analysis of the legal situation.
      I am only wondering, how the GFCC can stop a legislative project by simply calling the Federal President. To my knowledge, this instrument is not foreseen in any law in Germany. So, what makes the Federal President override the will of the parliament? It is accepted that he probably have the competence to look for formal deficiencies. These have been observed. But there are no voices giving him the competence to also double-check the compliance of substantive constitutional law. I see the point that otherwise an international treaty comes into force with little possibility to correct it.
      But Germany is not a kind of banana republic, where one guy just calls another one and that’s it. There should be transparency. There should be an official decision of the Federal President to wait. There should be written decisions so that the people know what is actually going on.
      Besides that it seems to me that the sympathy for the GFCC very much depends on the fact whether someone is in favour or against the UPC. And this is a political, not so much a legal questions, as European countries must be in a position to commonly resolve their issues. So, there must be a way, if they wish, that they can establish a European court for patents.

      1. From Juracademy – Bundespräsident:
         Der Bundespräsident muss auch einen politischen Gegner zum Bundeskanzler ernennen, wenn dieser gewählt wird und darf nicht die Ausfertigung von Gesetzen verweigern, weil er sie für politisch schädlich hält.
         So, he HAS to sign, BUT!
         Under point 4, a discussion about a formal check whether the new law conforms to the constitution is discussed, and also a material discussion, which seems to be contended.
         Nicht unumstritten ist hingegen das materielle Prüfungsrecht des Bundespräsidenten, nach dem er die Ausfertigung des Gesetzes auch verweigern dürfte, wenn ein Gesetz materiell nicht mit der Verfassung in Einklang steht. Die h.M. gesteht dem Bundespräsidenten ein solches Prüfungsrecht zu. Denn der Bundespräsident soll nicht gezwungen werden, sehenden Auges ein verfassungswidriges Gesetz zu unterschreiben. Dieses sprachlich eingängige Argument ist verfassungsrechtlich näher zu untermauern: Nach Art. 20 Abs. 3 GG sind alle Staatsorgane an die verfassungsmäßige Ordnung gebunden. Daher darf auch der Bundespräsident nur solche Handlungen vornehmen, die mit dem Grundgesetz vereinbar sind. Wenn Art. 82 Abs. 1 S. 1 GG ihn verpflichten würde, selbst verfassungswidrige Gesetze auszufertigen, könnte er sich aus dieser Zwangslage nur durch einen Rücktritt befreien. Deshalb muss die Norm dahingehend ausgelegt werden, dass er nur Gesetze auszufertigen hat, die auch materiell verfassungskonform sind. Sofern gegen diese Auslegung vorgebracht wird, dass die exekutive Gewalt wegen des Gewaltenteilungsgrundsatzes und zur Rechtssicherheit auch rechtswidrige Gesetze ausführen muss, so hinkt dieser Vergleich: Zum einen kann der Bundespräsident generell nicht der exekutiven Gewalt zugordnet werden, da er die Einheit des Staates verkörpert; zum anderen geht es bei Gesetzesausfertigung nicht um die Durchführung von Gesetzen, sondern um den Abschluss des Gesetzgebungsverfahrens. Wenn der Bundespräsident die Ausfertigung verweigert, sind deshalb keine Rechtsunsicherheiten zu befürchten, weil das Gesetz erst gar nicht in Kraft tritt.

         Umstrittener ist die Frage, ob seine Befugnis, die Ausfertigung zu verweigern, sich auf Fälle evidenter Verfassungswidrigkeit beschränkt. Große Teile der Literatur beschränken das materielle Prüfungsrecht auf „offentlichtliche und schwerwiegende“ Verfassungsverstöße. Hiergegen wird eingewandt, dass diese Kriterien viel zu vage seien und der Bundespräsident auch bei nicht evidenten, aber trotzdem bestehenden Verfassungsverstößen ebensowenig verpflichtet werden könne, das Gesetz auszufertigen. Immerhin ermöglicht diese Beschränkung in der Staatspraxis dem Bundespräsidenten trotz etwaiger Bedenken das Gesetz zu unterzeichnen, da jedenfalls kein „zweifelsfreier und offenkundiger“ Verfassungsverstoß festgestellt werden konnte (vgl. zu den einzelnen Argumenten Übungsfall 7 Rn. 173).
         Ein politisches Prüfungsrecht steht dem Bundespräsidenten unumstritten jedenfalls nicht zu.

         So, the “phone call” here is an indication for the federal president that the courts sees a doubt regarding constitutional compliance. (And in most cases, the court does not call after a complaint has been filed.)

         Clear is one thing, IF the GFCC decides, the new law conforms to the constitution, then the president has to sign.
         If there is doubt, the president alone decides whether he signs or not.
         There is no procedure foreseen to stop the law making process by the constitutional court, the only way is to kindly ask the federal president to not sign the law yet.
         Which the president can ignore and sign anyway.

         1. I think the law governing the Bundesverfassungsgericht has a formal mechanism in the form of preliminary injunctions. See e.g. §93d of the Bundesverfassungsgerichtsgesetz. As I understand it currently, out of some curious understanding of “professional courtesy”, they do not want to use this formal mechanism here though.

            1. This applies only to specific cases, but not to the law-making process.
               E.g. the Adenauer Fernsehen Case, where the Bundesregierung actively did something likely illegal, and the court said “stop until we decide”. Preliminary injunctions cannot be used for a law that has not been passed.

               Once the law has been passed, the court could issue a preliminary injunction to not apply the law to the executive, but not against the judicative.

            2. To clarify: your cited article refers to “Anwendung des Gesetzes” (application of the law).

               But without the signature, there is no law, as it has not yet been passed.

      2. Well, the important point here is reall, that once the treaty is ratified, there is no (easy) way back, should the BVerfG find the UPC not compatible with the GG – as compared to “domestic” laws, which the court can always suspend/strike.
         If I have understood the procedure correctly, it goes like this: The BVerfG could issue an injunction to stop the president signing the law, but would like to avoid this “discourtesy”, out of respect for the office of president… And apparently the president has agreed to handle these cases like this. I know, in todays world the concept of “courtesy” seems outdated (at least to some presidents 😉 ).
         For our British friends: how does it compare with the UK? Could a court issue an injunction to stop Her Majesty from giving Royal Assent to a law? Or would this also be handled in a courteous/informal way?
         AFAIK, this concept is known from normal court proceedings and the like: if one party declares not to do something. then the court does not need to decide on it or the other side does not have to take action (e.g. in opposition proceedings when the patent has lapsed or was redrawn, the declaration to not sue the opponent for infringment in the past).

   2. The issue of the UK (and London) being out of the agreement needs to be properly addressed with a proper amendment ratified by all participating states. The desire to push ahead and ignore the issue of Brexit is purely political. It seems to me to be all about the EU and Germany signalling that Brexit is a British problem and that Europe carries on regardless leaving the deserters behind. That is naïve. Brexit has created a problem for the UPC and Europe needs to face up to that and solve it in a workmanlike way.

      I know plenty of lawyers are keen on the UPC because they want to use it and it is good profitable interesting work, but should lawyers really be advising clients use a system which is potentially holed below the water line and open to challenges (Attentive Observer outlines some possible challenges in Germany – but there may well be some in other countries too).

      For the UPC to succeed it needs users bringing important cases to it. For users to bring important cases to it needs to be trustworthy.

10. I don’t think Alan is completely off-piste with his suggestion. The UK should try to get something going. It is market size that matters and just the UK-Swiss market together is large, particularly for pharmaceuticals.

    Personally, I would like to see what transpires with CANZUK. Near identical patent law and systems to the UK. You might think that is fanciful, but it doesn’t look any less fanciful than the UPC at the moment. CANZUK – can do. EU – not so much.

11. Whether one looks at the UPC, at an EPLA “light” or even at CANZUK one question should be answered first: how many multinational litigations are really taking place? Is a system of multinational litigation setling useful and viable?

    It is difficult to give a figure for an EPLA “light” or for CANZUK. A reply for the UPC member states is however easy as it can be brought in direct relation with the number of validations in their member states. Being generous the average number of validations of a granted EP lies between 5 and 7 and this for all its member states..With UPC member states the figure is lower.

    The number of true multinational litigations can thus be counted on the fingers of one hand. One which comes to mind is the famous pemetrexed case. But all the companies involved can certainly afford the costs of a multinational litigation.

    Setting up a complicated system like the UPC is thus by no way justified on an economical basis. And this is another birth defect of the UPC. In other words a cost/benefit analysis, which should have been the starting point is missing. So it was easy for the proponents of the UPC to come up with wonderful verbiage about further European integration and usefulness of the system for SMEs. Where are compelling the figures showing the economic necessity of a system like the UPC?

    In my humble opinion a system like the UPC is neither needed on a purely economic basis nor viable. To be viable the fees have been set at a level which does not allow SMEs to use it, but they would be under the permanent threat of the big industry. In the recent years all the big talks about the usefulness of the UPC for SMEs have vanished. Being so near to the opening, should Germany ratify, it was not any longer necessary to come up with this fig leave.

    Let’s face it, the UPC is no more than a further source of profit for internationally active litigation firms helping the big industry. All major internationally active litigation lawyers firms participated in committee setting up of the rules of procedure of the UPC. All its members were co-opted. This says it all.

    There are thus not only legal problems with the UPCA as it stands, but the economic necessity of a system governing multinational litigations in the EU has never been demonstrated.

    Bringing regularly all judges dealing with IP in general, and patents in particular, together would allow a much better European integration at a fraction of the costs induced by a system like the UPC. But then lawyers would not be able to increase their profits.

    The result of the pemetrexed case show that there is a consensus about the use of Art 69EPC and its Protocol. The times of “Improver” have long gone, and even then, it was only the UKSC who took an opposite view to that of the rest of the jurisdictions in EU member states. It reinforces my point of view that UPC is as necessary as trying to sell a bra to a policeman.

12. I have to say that I really like Tim’s idea of breaking the UP package up into more digestible parts. As far I as see it, this would have numerous advantages. It would also follow the long tradition in Europe of kicking into the long grass the tricky issues that arise with unitary patents (and a unified patent court).

    The easiest part for the EPC member states to swallow ought to be reducing the costs associated with the translations required to validate EP patents. We already have the London Agreement, which was an important step in this direction. Since then, more EPC member states have signed up to the UP package … thereby accepting a system in which fewer (and, eventually, zero) translations would be required to “validate” a (unitary) patent in their territory.

    The next step could be an international convention governing the conditions under which an EP patent is considered to be infringed (and the remedies available for infringement). As this was an essential aspect of the UPC Agreement, I see no reason why at least those member states that signed that Agreement would not sign up to a “stand-alone” treaty that contained the same (or similar) provisions on patent infringement. Further, without an international court to hide behind, the member states would be forced to make more of an effort to align their national laws with the provisions of the international treaty. This could significantly improve harmonisation / predictability of the outcome of patent infringement actions in different EPC member states.

    Once all of that has been achieved, then the member states can revisit the question of whether it is worthwhile seeking to further harmonise patent litigation in Europe by creating a unitary patent and a unified court. At that point, the gains achievable by other means would have been largely exhausted, thereby making it easier to conduct a proper risk / benefit analysis for the proposed unitary patent and court.

    All of the above is eminently achievable and, even without the final step to a unitary system, would benefit patentees and third parties alike. However, will a logical and sensible approach that maximises the benefit to society secure the same kind of powerful and persuasive backing that the UP package attracted? I can think of reasons why this might not happen … but certainly not any reasons that reflect well on the legal industry.

13. I am struck by how much commentary there has been on how, in Germany, the FCC and the Bundespräsident together handle scenarios in which the FCC would like more time to consider whether a constitutional complaint has merit. How this happens is well known and hardly a surprise, given that this is precisely what happened in 2017 (when, as I recall, there were no complaints about this aspect of German law / practice).

    To those who are concerned about the democratic legitimacy (and potential for abuse) of the “gentleman’s agreement” between the FCC and the Bundespräsident, I would merely point out that there are other areas where the grounds for concern are MUCH greater… for example, the provisions of the UPC Agreement (for reasons elucidated in the 2017 complaint) or the “dynamic” interpretation standard adopted by the EBA in G 3/19 (which has been rightly criticised for undermining democratic legitimacy and the separation of powers). Forgive me if I am wrong, but I do not recall seeing any complaints on those points from the commentators who are now seemingly so concerned about fundamental issues underpinning the rule of law.

    I can think of one reason why commentators might now decide to criticise the way that the FCC and the Bundespräsident work together. That is, unless and until the UPC becomes a fait accompli, there remains a chance that the FCC could make it impossible for Germany to ever ratify the UPC Agreement (for example, by reviving and then deciding upon the point discussed in paragraph 166 of the ruling on the 2017 complaint). For this reason, I have absolutely no doubt that the UPC’s strongest supporters will now proceed to argue long and hard that the two new complaints should be immediately dismissed and/or that, irrespective of the complaints, the Bundespräsident should be allowed to sign the new law. However, it is another question entirely whether I will have the stomach to endure the endless rounds of fantastical (and nakedly self-serving) arguments that will be generated to this end.

14. As far as languages are concerned claiming that the UP/UPC system reduces the language problem is no more than a fallacy.

    In order to transform a granted EP into a UP and for no less than twelve years of a transitional period, it will be necessary to file an English translation if the EP has been granted in German or in French and in any language of a UPCA contracting state if the EP has been granted in English, see Point 12 of the Preamble of Regulation 1260/2012. Later “Patent Translate”, i.e. Google, will allow machine translation in any language of a member state of the UPCA, see Article 3 of Regulation 1260/2012.

    I fail to see here a simplification. I would even go further and claim that by accepting such a clause member states of the London agreement breach the law they have adopted by acceding to the London agreement. Why is it suddenly necessary for a patent granted in French to be translated into English when it should be valid in France or in Germany? I would thus go as far as claiming that the way of obtaining a UP is in contradiction.

    However a possible positive effect of “Patent translate” would then be to render Art 65EPC obsolete, and hence “extend” the London agreement to all EPC member states.

    The question of translations was and still is a source of revenues for firms of representatives. For instance, the French profession was strictly against the London agreement for exactly this reason. In their actions against the agreement, it eventually ended up before the French Constitutional Court. To their big disappointment, the FCC accepted that a patent granted in one official language of the EPO can be valid in France even if it is not translated into French.

    When one looks at the language regimen before the UPC, the following becomes apparent:
    According to Art 49(6) UPCA it is only before the central division that the language in which the patent was granted will be the language of proceedings. For a local or regional division the situation is quite different.
    According to Art 49(1)UPCA and R 14UPCA, the language of proceedings before any local or regional division shall be an official European Union language which is the official language or one of the official languages of the Contracting Member State hosting the relevant division, or the official language(s) designated by Contracting Member States sharing a regional division.
    According to Art 49(2) UPCA, Contracting Member States may designate one or more of the official languages of the EPO as the language of proceedings of their local or regional division.
    According to Art 49(3) UPCA, the parties may agree on the use of the language in which the patent was granted as the language of proceedings, subject to approval by the competent panel. If the panel does not approve their choice the parties may request that the case be referred to the central division.
    According to Art 49(4) UPCA, with the agreement of the parties the competent panel may, on grounds of convenience and fairness, decide on the use of the language in which the patent was granted as the language of proceedings.
    According to Art 49(5) UPCA, at the request of one of the parties and after having heard the other parties and the competent panel the President of the Court of First Instance may, on grounds of fairness and taking into account all relevant circumstances, including the position of parties, in particular the position of the defendant, decide on the use of the language in which the patent was granted as language of proceedings. In this case the President of the Court of First Instance shall assess the need for specific translation and interpretation arrangements.
    The use of the language in which the patent was granted is thus left to the discretion of the local or regional panel concerned or at the discretion of the President of the Court of first instance.
    It is however not finished: according to R 14(2,c) UPCA, even if the parties themselves have chosen to use an additional language of the EPO as the language of proceedings, the judge-rapporteur may order in the interest of the panel to provide that judges may use in the oral hearings the official national language(s) of the country where it is situated. In case the official language is used over the chosen language, each order and decision shall be accompanied with a certified translation for enforcement. It means that in oral proceedings before a local or regional court the hearing can take place in the local/regional language.
    As far as amendment to the patent is concerned, any amendment will have to be filed in the language in which the patent was granted, R 30(1,a) UPCA. However, If the language of the proceedings before the UPC is not the language in which the patent has been granted, the proprietor will need to translate the proposed amendments into the language of the proceedings.

    Simultaneous interpretation during an oral hearing before the UPC (=oral proceedings before the EPO) is foreseen, cf. R 109(1) UPCA. It is the judge-rapporteur who will decide whether and to what extent simultaneous interpretation is appropriate and shall, instruct the Registry to make all necessary arrangements for simultaneous interpretation, cf. R 109(2) UPCA. In the event that the judge-rapporteur refuses to order simultaneous interpretation the parties may request arrangements to be made, so far as practically possible, for simultaneous interpretation at their cost.
    Last but not least, costs for simultaneous interpretation are costs of the proceedings to be decided upon under R 150 UPCA, except where a party engages an interpreter at its own expense, whereby these costs are borne solely by that party, cf. R 109(5) UPCA
    Only the costs for interpretation and translation which are necessary for the judges of the Court in order to conduct the case in the language of proceedings are borne by the Court, cf. R 150(1) UPCA.

    Contrary to the EPO, where cost for simultaneous interpretation are borne by the EPO is simultaneous interpretation are requested in due time, at the UPC the losing party will have to pay for the costs of simultaneous translation.

    I might have been long, but I am sure that very few people have an idea what the language regimen before the UPC are, and the intricacies it entails.

    All the UPC lobbyists have never made clear what mess the language regimen before the UPC will be, and you can now understand why. The members of all parliaments having ratified the UPCA have certainly not heard about all these problems.

15. Some more comments:

    The Luxembourg convention of 1975 was dead-borne for two reasons
    – the language problem;
    – the fear of forum shopping.

    I am inclined to think that the UPC actually suffers the same problems, May be to a lesser extent, but still.

    The forum can be chosen by the complainant applying for infringement.

    Only before the Central Division the procedure can be held in the language in which the patent has been granted.

    Whether before a local/regional court or before the Central Division, should interpretation be needed, the costs will be borne by the losing party.

    How many SMEs will afford to take the risk and counter-claim for revocation or even start an action for revocation or non-infringement before the UPC? Even if the financial means of the parties are duly taken into account, a SME will have difficulties.

    But all the pro-UPC lobbyists, helped with some governments and the European commission, promise a wonderful world, especially for European SMEs.

    Yes, it will be a wonderful world for the purse of big litigation firms and for the big industry but certainly not for European SMEs.
    .
    There are many more problems with the UPC, but Art 7(2) and the language mess should be sufficient to give it a death knell.

    Just one more piece of information:
    According to Art 48(4) UPCA representatives of the parties may be assisted by “patent attorneys”, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.
    What do the rules of procedure say?
    According to R 287(7) UPC the expression “patent attorney” also includes professional representatives before the EPO pursuant to Art 134 (1) EPC
    However, according to R 292(3) UPCA the “patent attorneys” shall be allowed to speak at hearings of the Court at the discretion of the Court and subject to the representative’s responsibility to coordinate the presentation of a party’s case.
    In other words, the rules of procedure have been drafted so that the “patent attorneys” may at best have a position similar to that of accompanying persons in the meaning of G 4/95 before the EPO, i.e. they have no procedural right to speak before the Court.
    If it was the intention of the legislator to also allow, albeit under certain conditions, representatives under
    Art 134 EPC, to address the UPC, this intention is counteracted by the rules of procedure of the UPC. And who drafted those rules of procedure?
    One way out could be to consider those “patent attorneys” as expert of a party under R 181 UPCA as they certainly will know more about technique than all the lawyers allowed to speak.

    It is high time to open the eyes to all those who have been gullible to the waffling of the pro-UPC lobbyists.

    I am for European integration, but not for an integration governed by lobbies. And I do not care if some people think I am naïve. ´

    1. Surely A. 48(2) AUPC addresses this issue.

16. Dear concerned observer, I would not be surprised if the whole “Federal President/FCC mechanism” and “only partially upheld” shenanigans were a deliberate attempt by certain circles to divert the public’s attention away from the real issues and make them concentrate their energy on aspects were it can do no harm to certain interests.

    The “Federal President/FCC mechanism” has been and is now again being made a pseudo-issue by one single commentator here, recently joined by a passenger from the pro-UPC band wagon. It is not difficult to add one and one and see through this charade. You have correctly pointed out that said long-standing mechanism, its basis and constitutional background have long been explained in detail elsewhere.

    It is absolutely stunning to watch how even some of the most seasoned and versed commentators here
    are easily triggered into an ultimately futile discussion.

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