Germany and Slovenia have ratified the Protocol on the Provisional Application (PPA) of the Unified Patent Court Agreement.

According to a report of the UPC Preparatory Committee, the German government deposited the instrument of ratification for the PPA on 27 September 2021. It wrote: “This is a decisive step on the way to the establishment of the Unified Patent Court after the work had been on hold for several years during the examination of the Agreement by the German Federal Constitutional Court (FCC).”

In a press statement, the German minister of Federal Justice, Christine Lambrecht, said: “With this step we have come a decisive step closer to European patent reform, which is so important for innovative companies in Europe. The Unified Patent Court will come. For German industry, which holds around 40 percent of all registered European patents, better protection of their inventions in the European internal market is of particular importance. This also applies to small and medium-sized companies that make a significant contribution to the innovative potential of our country. ”

Slovenia, Austria

In Slovenia legislation ratifying the PPA came into force on 24 September 2021 when it was published in Slovenia’s Official Gazette. Austria is also expected to ratify the PPA shortly. As the UPC Preparatory Committee reported, apart from Germany, “two further ratifications of the (…) Protocol are necessary to enter the final phase for the set-up of the Unified Patent Court. It is expected that the required ratifications will soon be attained triggering the implementation of the UPC as an international organization.

In this phase of provisional application will take place e.g.: the adoption of the secondary legislation and the Court’s budget, the completion of the electronic case management system including stress testing, the process to select and appoint the judges of the Court. When it is clear that the UPC will be operational upon the entry into force of the UPCA the final ratification of the Agreement by Germany can take place serving as a “gatekeeper” for Member States to ensure a proper process.”

EU Competitiveness Council

During the EU’s Competitiveness Council of 29 September 2021, the state of play of the UPC project will be discussed. Last week a note on this issue was published by the presidency, which makes clear the UPC Preparatory Committee expects the provisional application period to last from six to ten months. About the start of this period, the note says: “Slovenia envisages to deposit the ratification instrument for the PPA together with its ratification instrument for the UPCA. Austria, which was the first Member State to ratify the UPCA, has submitted a draft law for the ratification of the PPA to the national parliament in July 2021. Once the ratifications of the PPA by Germany, Slovenia and one other participating Member State are completed, the provisional application phase will start.”

EPO Select Committee

According to the note, the EPO Select Committee, which is in charge of preparing for the Unitary Patent, will resume its work soon as well: “In view of the entry into operation of the unitary patent system, the relevant preparatory bodies, namely the Select Committee of the Administrative Council of the European Patent Organisation and the UPC Preparatory Committee , stand ready to resume their activities to ensure that still outstanding preparatory work is concluded in a timely manner. To that end, the next meeting of the Select Committee is foreseen for 14 October 2021.”


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21 comments

  1. Brexit implications suddenly vaporized, why this question is not addressed in the Council document?

  2. Copied from the EU Council website today:
    Agreement on a Unified Patent Court (UPC)
    United Kingdom: Withdrawal of ratification received on, and effective as from, 20/07/2020

  3. “This also applies to small and medium-sized companies that make a significant contribution to the innovative potential of our country.”

    Court fees of the UPC for cancelling a patent are 20.000EUR. In Czech Republic, they are 80EUR.

    Lawyers fees will also be on the rise, due to the tight agenda of 12 months imposed by the UPC.

    Refundable amounts are too low, so even if you are in yoru own right, you won’t be fully refunded.

    So much the “it’s also good for SMEs”.

    Mdme Lamberts has a different calculator than mine.

  4. An interesting question will apply to judges that might be recruited during the provisional application period. That is, will they be prepared to accept employment from a court that, strictly speaking, does not have any legal basis (and hence is not a bona fide legal entity)?

    Of course, accepting an offer of employment by the UPC under these circumstances would (or at least should) disqualify the judges concerned from hearing any cases that challenge the basis (under international law) for the UPC. This is because any party raising such a challenge would be able to point to the judge’s acceptance of employment by the UPC as providing objective justification for a fear of partiality on the point of law in question.

    Thus, it will be impossible for any judge of the UPC to handle, in an objectively unbiased manner, any challenges to the legitimacy of the UPC.

    Pray tell, which courts and judges would be able to handle such challenges in an unbiased manner? There is absolutely no doubt that such challenges will be raised. So is this another reason to conclude that, as currently constructed, the UPC suffers from fundamental and irredeemable flaws … including an impossibility of demonstrating compliance with the Art 6 ECHR rights of litigants to an “independent and impartial tribunal established by law”?

    1. Your comment is very interesting and you raise a real problem.

      When do you state that the UPC “does not have any legal basis” are you aiming at Art 7(2)UPCA?
      Another way of looking at it, is it possible, without amendment of Art 7(2)UPCA, to consider that the notion of legal judge is not respected should the duties of the London Section be “provisionally”transferred to Paris and/or Munich?

      As far as judges are concerned there are quite a few of them jumping at the bit to get a post at the UPC.
      Some of them openly complain that the delayed opening of the UPC costs them a lot of money in view of the higher wages they could get at the UPC in comparison to their national wages.

      It is not difficult to understand why the promoters of the UPC ignore all the legal problems which the UPC faces. The only legally correct way to amend Art 7(2) UPCA is to renegotiate the location of the section of the central division. This means a new round of ratifications.

      UPC promoters know too well that the interest for the UPC would vanish. After all, 45+ years have passed since the Luxembourg conference and it does not appear that the few supranational litigations in the EU need such a complicated thing as the UPC.

      Not only the British legal profession has already lost out due to Brexit, but the same fate would occur to the legal profession on the continent.
      All the efforts put into the setting up of the UPC would have been in vain and there would be no return on investment.
      But wanting to go through the wall for the sake of a return on investment will end up with a similar result.

      1. Attentive,

        There are many problems with the purported legal basis for the UPC (and its Protocols). However, I was thinking mostly of Article 3(1) of the PAP.

        Unless and until the PAP comes into force, the UPC will not have any legal personality, and will therefore be legally incapable of employing any judges. Thus, for any judge who accepts employment by “the UPC” during the provisional application phase, an objectively justifiable fear of partiality would arise on questions that will be crucial to determining whether the current UPCA provides sound legal basis for the UPC.

        For example, an objectively justifiable fear would arise that any such judges had already made up their minds with regard to either the legal effect of the withdrawal of a ratification, or the possibility of “rescuing” (under international law) an instrument that has not been ratified by the relevant contracting parties specified in that instrument. Both of these questions will be highly relevant to determination of the validity of the current UPCA. Further, the same objective fear of partiality would apply to any judges recruited after the end of the provisional application phase. Which would leave precisely no judges of the UPC who would fit the criterion of an unbiased adjudicator on the question of the legal validity of the UPCA.

        Thus, if things go to plan for the UPC’s promoters, the UPC will launch in circumstances where it will be impossible for any of its judges to provide an impartial hearing on crucial questions that WILL be raised by certain litigants. This would hardly inspire confidence in the UPC. Further, the serious deficiencies regarding the governance of the UPC are, over time, pretty much certain to make things even worse. So much for the supposed rule of law.

        1. If I understand you well you are of the opinion that any judge recruited under the PAP, or thereafter, cannot exercise his duties correctly due to a justifiable fear of partiality on questions that will be crucial to determining whether the current UPCA provides sound legal basis for the UPC.
          With reference to Art 3(1) PAP you consider that, since the UK is still mandatory signatory of the PAP, any recruitment during the PAP is void ab initio as the recruited judge cannot decide that the PAP has a legal basis.
          Am I correct?

          1. Attentive,

            If the UPC were to operate without a valid legal basis (under the PAP and/or the UPCA), then it would not be a valid legal entity.

            At least the references in the PAP to the UK, and in the UPCA to London, provide prima facie reasons to believe that there is no valid basis under international law to bring either instrument into force. In other words, it would seem that the only valid way to proceed would be to draft (and separately ratify) new instruments that exclude references to the UK and London.

            If the UPC is not a valid legal entity, then this would call into question the legitimacy of any UPC judge’s contract of employment (and hence whether they were appointed in a manner according to the law).

            Thus, a UPC judge would not be able to reach a negative conclusion regarding the legal basis for the UPC (under the PAP or the UPCA) without calling into question his or her own legitimacy. Under these circumstances, which judge of the UPC could ever be seen as an impartial arbiter of the question of the legal basis for the UPC?

  5. The civil servants in the Ministry of Justice have had their hands guided all along by external lobbyists.
    If you compare the content of the explanatory note for the second ratification with an article published by Mr Tillman (from Hogan Lowells) in GRUR Int a few months before the resemblance is baffling.
    The whole waffling about the provisional allocation of the duties of the London Section to Munich is to be found in the article in GRUR Int.
    Does anybody think that the countries having claimed the reallocation of the London Section (IT, NL, IR) will simply acquiesce to such a crude manoeuvre?
    Such an absence of sense of the realities is flabbergasting.
    It give the feeling that the promoters of the UPC think that the more fake information is repeated the more they hope it will become true.
    In the explanatory it is also said that it will be cheaper for a German SME to go to´ the UPC rather than to a German court. Hard to believe, but true.
    Mrs Lamberts has definitely a different calculator, but we know where it comes from.
    Without amendment of Art 7(2)UPCA it is a fallacy to think that the UPCA is in conformity with Union law.

  6. “Never mind the (lack of) quality; feel the width” as the legendary seller of poor quality carpets used to say. All these worthy but legalistic objections are powerless in the face of a political will at the level of the EU, to have the UPC succeed.

    Recall the time when the Editor of the London Times was exasperated by his journalist embedded with the British forces in the Boer War in South Africa. The war was not going well. The journalist filed a succession of reports of British defeats in battle. The readership of the newspaper was not happy at all. The Editor telegraphed his employee at the Front with a short message, namely “Send news of victories”

    Those pushing the UPC operate in a world where the axiom “Fake it till you make it” is usually successful. As somebody on another blog thread pointed out, it will be pressure from the global titans, the bulk accumulators of portfolios of unitary patents, the so-called “national champions”, who will apply irresistible force on courts and governments, to force the UPC to work.

    That irresistible pressure on the politicians and jurists, applied by lobbyists, will result in a political mindset that the UPC must be made to succeed. After all, as everybody knows: “Where there is a will, there is always a way”. The Little Countries will presumably be bought off, in successive rounds of the usual EU horse-trading. The SME’s are mostly not even aware what is at stake and those few who understand have no lobbying muscle.

    For those pushing the UPC, harm to our precious Rule of Law is mere “collateral damage”.

    1. Max,

      All hard to deny. The most galling part of the political support for the UPC is that it seems that the intention is to raise the current legislation from the dead merely for the sake of political convenience. This will create a Frankenstein’s monster of a court. The ultimate fate of Frankenstein should be a cautionary tale for those politicians intent upon ramming this court down all of our throats.

  7. Dear Max Drei,

    I understand and share your anger at the way the UPC is pushed down our throats for the benefit of very few which want to make the big buck. The usefulness of the UPC for SMEs is also one of the fake news which helped as a fig leaf to lure politicians in accepting that the UPC is something which is absolutely necessary for the benefit of Europe.

    The contrary is true and the big beneficiaries are the big industry, but even more internationally active lawyer firms specialised in litigation.

    Portugal and Slovenia have been bought off as an arbitration chamber was offered to them.

    A training centre for judges has been promised to Hungary, but in view of the constitutional problems to be solved before it cannot ratify the UPCA and the centre will have to be transferred somewhere else. Here we have another problem which should be settled before the PPA enters into force and the judges are trained.

    I cannot accept that the Rule of Law is mere “collateral damage”.

    If the EU accepts that the UPC enters into force as it stands, then it should refrain from requesting Poland to restore the independence of justice. By accepting that the duties of the London Section of the central division is pushed around as suggested, it behaves exactly as Poland.

    I have not yet given up the hope that in the end the rule of law will prevail.

    1. I would not go as far for the EU. There are lots of criticisms, but I do not think that any referendum deciding to leave the EU would have any chance of success, even in countries which are at odds with the Commission.
      They would lose a lot of money.

  8. Can someone please explain how the Protocol and the UPC can enter into force soon when the UK has withdrawn its ratification in 2020?

  9. The European Commission has cheated the Impact Assessment of the UPC.

    The Harhoff 2009 study was about the “Community Patent”, not the “Unitary Patent”.

    It was done to hide the controversial changes made in between, such as the “self-financed” aspect of the UPC, which explains why it is so expensive for SMEs.

    This is a intentional fraud.

    1. Does anybody know where is the UPCA Impact Assessment (IA)?

      In the IA on the 2 regulations, you can find this curious statement:

      https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:0483:FIN:EN:PDF

      “Finally, this IA does not address the unified patent litigation system that follows a parallel work stream and will be subject to different legal instrument.”

      FFII has also published some allegations in June:

      https://ffii.org/european-commission-cheated-unified-patent-courts-impact-assessment-to-hide-the-high-costs-for-smes/

      “according to a testimony we received [Margot Frohlinger] did not want to “redo the impact assessment because it would attract critics”.”

      The Commission is obliged to ship Impact Assessments attached to each of their proposals (which was correctly done for the 2 regulations), why was it not done with the UPCA?

      1. Thanks for the information.
        It is even worth than what one could expect.
        Cheating was voluntary.
        This is lobbying at its best, and the politicians were too happy to fall for it!
        The rule of law should not be degraded as it would be should the UPC start!
        It makes one want to puke at such duplicity!

  10. Those who claim that the UPC is good for European industry in general and SMEs in particular cannot believe what they are saying.
    The simply use the SMEs as fig leaf.

    There have been studies showing clearly that the UPC will have a deleterious effect on SMEs.
    I refer here at the study of Mr Dimitris Xenos “The Impact of the European Patent system on SMEs and National States and the Advent of Unitary Patent” available at https://ssrn.com/abstract=3600384

    Why have countries like Poland and the Czech Republic refused to ratify the UPC? Because it will have a deleterious effect on their industry.

  11. Dear Concerned Observer,

    I can fully subscribe to your view as far as the position of a judge acting under the UPC as it stands.

    But would it not be easy for such a judge to say that the subject-matter of the debate before the UPC is an infringement or nullity action and hence challenging the legality of the UPC is a not-admissible question?

    I fear that this might be the position of all judges also hoping to make the big buck at the UPC. They would not be so stupid as to saw the branch on which they are sitting?

    Before the entry in force of the UPC, its conformity with Union law has to be checked. It is not enough for its promoters to claim that it is conform.

    1. “Before the entry in force of the UPC, its conformity with Union law has to be checked. It is not enough for its promoters to claim that it is conform.”

      In the previous project of 2009, the UPLS, the Rules of Procedure had to be validated by the CJEU, not the Commission, like in UPC. No idea what that has been changed.

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