The Unified Patent Jurisdiction is coming! It is announced that the system will be operational by 2022. Great! But no information on its implementation, European governments seem to be barely aware of it, ignoring the issue (not really “European” by the way)… What is the problem?

Example 1: who are the candidate judges? No public list, I even heard that the French government doesn’t have it. So it’s interesting to do polls with JUVE (good initiative), but it would be better to know the “official” candidates.

Example 2: who will take over the Presidency of the Jurisdiction? A political question, of course, but one whose importance cannot be denied, and everyone knows it. Will it be a co-opted international civil servant or a real magistrate? In any case (sorry, but this is also important), of what nationality should this future Judge be? No answer there either.

Example 3: what about the central division for the UK? Then one could imagine locating everything in Paris, as the EPO center is in Germany. This would be a more efficient system and, without any chauvinism, a nice “showcase” for the future court, especially since the French courts are efficient in patent law and the international chamber set up by the Paris Court of Appeal is a good omen for an international court. Now, some will accuse (insult) me here, because I am French, but, after all, why should I not be in favour of an efficient system? Everyone sees no harm in it. That being said, here too, there are discussions in the corridors (which is the primary meaning of the term “lobbies”), no information, and new candidates are even being considered to take in bits of the English division. Can we then talk about efficiency? I doubt it. But, having said that, the reader has understood that little information is available, at least to my knowledge.

We are, according to some, a few months away from a revolution for the European patent system and I have the feeling, perhaps very personal, that I am swimming in the fog with many of my peers (and the governors). Perhaps it is time to bring this debate into the public arena? Otherwise the legitimacy and therefore the success of the future jurisdiction will suffer.


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15 comments

  1. There is another issue which has the potential to cause – to quote Mr. Dhenne’s exact words – “the legitimacy and therefore the success of the future jurisdiction” to suffer.

    That issue is that nobody knows whether the contemplated move of the London section of the Central Division to another location is even in accordance with law in the first place.

    If that is not the case, then whoever is the first to lose a huge amount of money in a case which should have been adjudicated before the London section could rush to the ECJ and argue that the decision was handed down illegally and is therefore null and void. It is hard to picture a rougher start for a fresh international court, is it not?

  2. i think for example 2, you can find an indication in articles 13/14 of the statute of the UPC
    perhaps it’s time to open the books 🙂 ?

  3. I understand the problem with London being named in the UPC Agreement as a matter of international law of treaties, and may even sympathise with the view that there my have been some opaque business in recent times (BVerfG decisions on questions that weren’t asked, “Declarations” and the like) to get us here, but I honestly cannot see the issue of the London branch being a matter referred to the CJEU after the court has started. Why would the judges of the court (the greatest of respect to them, whoever they may be) refer a question undermining the validity of their own court, and under what provision of EU law given that it is based on an international agreement? Why would the CJEU (with the greatest of respect to the CJEU) make an adverse decision of such embarrassment to the EU, when politically the EU machinery is desperate for this court to get going? I am not an EU specialist and many who read this will know more than I do about EU law and procedures — these are genuine questions.

    1. As a practical matter, I agree that the factors you mention may come into play. However, the point is that, in a union of democratic states ostensibly committed to the rule of law, they should not matter at all. If some official act has been performed contrary to law, then the competent judges must rule that said act is null and void, regardless of their personal views and interests, or of those of others. Otherwise we start making distinctions between situations in which the rule of law “should not” matter and situations and in which it “should”, and we all know that’s a very slippery slope to start on.

      1. Extraneous Attorney, I think that the point that “Opaque business” was trying to make is that there is a legal lacuna due to the “international” nature of the UPC.

        In essence, it may be that a lack of compliance with the rule of law will not elicit any consequences if the cracks between the national, EU and international legal systems means that any relevant complaints simply fall into a legal grey zone where no court will either acknowledge or claim competence.

        1. Fair enough, I don’t disagree. Perhaps I am being naive when I hope that all of this will make national parliaments a lot more reluctant to grant considerable legal power *and* immunity from suit to international organizations like the EPO or the UPC.

  4. That it would be correct to know who will be the judges of the UPC, or who will be the first president, a Frenchman in any case, might be of concern, but is certainly not so vital and important than what will happen with the London Section of the Central Division. The selection criterion are also not known and like for the composition of the drafting committee of the rules of procedure, co-optation will most probably be the way of designation in spite of this duty being given to an Advisory Committee. .

    When the minimal conditions for ratification were set up, it was easy to find a rule which made it mandatory that in the end, the UK, Germany and France had to ratify the UPCA in order it to enter into force. Replacing the UK by Italy is thus not a problem.

    When it came to the Central Division the only compromise to be reached was to give a bit of this Central Division to each of the three big contracting states, and this is why London, Paris and Munich are mentioned expressis verbis in Art 7(2) UPCA. In Annex II, but also part of the UPCA, it is even stated which IPC classes will be dealt with in the various locations.

    What the proponents of the UPC hoped, was to bring it into force as quickly as possible, so that outstanders would not have time to realise what went on and all the drawbacks and problems the UPC could have been swept under the carpet. No institution would have the nerve to kill something which is already into force.

    Brexit put an end to this endeavour and for a long time the UPC proponents suggested lots of legal tricks by which the UK could participate without being still in the EU.

    Being written in the treaty, which on top has not yet entered into force, the falling out of the UK after Brexit has created a real problem. Art 31 and 32 VCLT are of no help as the wording in the treaty is crystal clear. Neither does Art 62 VCLT which clearly only applies to treaties which have entered into force.

    The only correct way would be to at least amend the treaty so as to clarify the situation of the London Section. This perfectly legal situation would require a new negotiation, not only on where the London Section should be reallocated, but also which technical areas should be dealt with between the three locations. I cannot see the French or the German chemical/pharmaceutical industry/government letting this branch of technique go to a country which is not at the forefront in those domains.

    More important, a new ratification would further delay the UPC by a few years. And the lobby behind the UPC (the big industry and especially big lawyer firms acting internationally) would see their hopes already smashed by Brexit completely ruined. The UPC proponents still hope that no institution would dare kill the “amended” UPC with the problems of the London section simply being ignored. This is why they still push towards a quick entry into force.

    Me Dhenne, like many other French lawyers, would like to see the duties of the London Section come to Paris (the Brexit gift according to Me Véron). The problem is that it is difficult to see any legal basis for such a transfer of duties to Paris, or even Munich, as in the meantime, Germany has also shown an interest. Do you think that the other contenders for the London Section, like Italy and The Netherlands would be without reaction?

    Without a revision of Art 7(2) UPCA it is doubtful that the UPC would be a legally constituted court in the meaning of Art 6(1) ECHR. What it is good if the EU Commission attacks Poland and Hungary on the independence of the justice and the necessity of a legally designed judge when it happens at a court which is meant to apply Union Law. That a UPC judge might be removed from office by its peers without offering any means of redress does also not appear in conformity with Union law.

    It should not be forgotten that appointment of UPC judges shall be carried out by the Administrative committee, i.e. by the representatives of member states (like at the EPO), that means that politics will thus play a direct role, in spite of the duties of the Advisory committee to preselect potential judges.

    To put it bluntly in spite of the nice words in the UPCA and in the statute of the court, the conformity of panels of the UPC with Art 6(1) ECHR, and especially those of the central section as it presently stands, does not seem to be given without any reasonable doubt. it would be nice to see those doubts dispelled as quickly as possible.

    In any case the UPC is a prime example of what lobbies can achieved!

    1. Is the Dutch government aware of the problems with Art 7(2) UPCA?
      Is this problem discussed in the standing committee on patents of the Dutch Ministry of Economic Affairs?
      Is the government sure that the UPCA is in accordance with Union Law?
      I am pretty sure that lobbyists of all kinds are “helping” the Dutch government!

  5. If UK=Italy then London=Milan.

    Moreover, it was clear from the very beginning that the three UPC seats reflected the three most important UPC MS (the probability of guessing 3 numbers on 25 is 1/13800).

    By the way, the Italian pharma industry is the third in Europe after Switzerland and France, and before Germany and the UK.

    1. What is your legal basis for UK=Italy then London=Milan?
      For the ratification OK, but for Art 7(2) UPCA I am not sure at all.

      1. If UK=Italy for Art. 3.1 PAP then London=Milan for Art. 7.2 UPCA, unless someone can explain how you can “interpret” in the same way a first law (PAP) and not a second one (UPCA).

        Do we now have A-laws and B-laws?

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