Since 19 January 2022, the provisional application protocol (“PAP”) of the UPCA has officially entered into force. However, as previously reported, this entry into force of UPC faces a number of difficulties, including the exit of the UK as a result of BREXIT.

One example is PAP’s Article 3(1), which requires the Protocol to be signed by the UK. This text makes the entry into force of the Protocol subject to numerous conditions, including signature by the UK. However, while the UK did sign the PAP and then ratified the Agreement, it also withdrew from both after BREXIT. We can therefore understand the interpretation of the JUB Preparatory Committee, dated 28 October 2021, according to which this Article 3(1) should be interpreted in the sense of Article 89 of the UPCA. Thus, it would mean that entry into force would no longer be conditional on the signature of 13 signatory States including France, the UK and Germany, but on the signature of 13 States including the three “Member States in which the greatest number of European patents were producing their effects” (UPCA’s article 89, now France, Germany and Italy).

In any case, the Council of the European Union seems to have turned a blind eye to this difficulty by announcing the entry into force of the PAP without providing any clarification. Such an approach by the Council is nevertheless to be deplored for one simple reason: legal certainty. This is the first quality sought in a legal system, that should also attract future applicants for a unitary patent, could be lacking here. Indeed, how can economic players be invited to use a system where it is known that the basis is fragile and that it could be challenged at any time by a litigant? In the meantime, it seems that we already have a good defense in future proceedings!

 


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Kluwer IP Law
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7 comments

  1. Matthieu, whilst you have a good point regarding the “fragile” legal basis of the UPC, the important question is whether this will make any difference in practice.

    From a practical point of view, one could be forgiven for concluding that the UPC will now be effectively immune from any legal challenge, no matter how well-founded and persuasive. This is for three main reasons.

    Firstly, the UPC enjoys strong political support at the highest levels (including in the European Commission, the European Parliament and the most influential EU Member States). Whilst this should not have any bearing upon UPC-related deliberations of the CJEU, experience teaches us that the CJEU is perfectly capable of delivering decisions whose conclusions show signs of being “politically” motivated.

    Secondly, the judges of the UPC are hardly likely to reach the conclusion that the legal basis for the UPC – and hence also the legal basis for their employment – is not valid.

    Thirdly, invalidation of the UPCA would make the EU Regulations governing unitary patents completely unworkable. This would leave EPs granted as unitary patents in legal limbo, and potentially unenforceable. This factor could persuade the courts to seek out a way of upholding the UPCA even if they conclude that it is manifestly invalid.

    The fact that the UPC seems to be a fait accompli will certainly please the litigation lawyers that crafted the UPCA, persuaded politicians to pick up the project, nursed it through several episodes that seemed certain to spell its demise, and staffed the preparatory and advisory committees. Nevertheless, whilst those lawyers will be quick to point to the purported benefits of the UPC, I have yet to see any sign of an acknowledgement that their extensive involvement in the UPC project could be seen as inappropriate (and a conflict of interests) in view of the fact that they stand to become the biggest beneficiaries of the advent of the UPC.

  2. Probably not a common court in the light of CJEU jurisprudence (Achmea).

    There has been a parliamentary question about this, but Mr Breton did not answer the question in the light of the jurisprudence, adding to the mix that everything has been solved to deal with opinion 1/09, which is false.

  3. Also in the news is the TESLA Giga-Factory in Brandenburg, because it has just this week gone into production. Elon Musk has invested billions in the project, despite numerous lawsuits striving to halt the mega-project in its tracks. But politicians in Germany have invested even more of their credibility than Musk has of his shareholders’ money.

    Thousands of jobs are at stake.

    What judge is brave enough to go against all that, even under the assumption that the legal case against the factory is overwhelming?

    Compared with such matters it requires a minimum of wilful blindness for judges steadfastly to turn a collective blind eye to the manifest unlawfulness of the UPCA, because (unlike the Tesla factory drinking all the groundwater in the German State of Brandenburg) it is a topic of interest only to a few obsessive patent practitioners, whose viewpoint is easily swept aside by the many proponents of the UPC as being nothing more or less than naked self-interest.

    What international industry wants, these days, it gets, regardless of any legal obstacles standing in the way.

  4. I can agree with Concerned Observer, but I continue to claim that by abolishing the rule of law, which will be the case if the UPC starts in the present form, we will end in a legal jungle. This is not what I wish for my children and grandchildren.

    How can a court be abiding Union law or Art 6(1) ECHR if a judge can be removed from office by his peers without offering any means of redress? Or do you want a UPC judge to go to Geneva like members of the BA have to do?

    As far as the Tesla factory is concerned, one can agree with Max Drei and understand that politicians have jobs in mind. This is also one of the reasons Germany has always been resisting new rules of CO2 emissions by car.

    As far as jobs are concerned, I fail to see that UPC judges could not continue to live with what they earned before coming to the UPC, and the big lawyer firms have already deep pockets which do not need to get deeper.

    The only conclusion to be drawn is that lobbyism and private interests are more present in our day and age than ever before.

    1. Attentive, I believe you underestimate the ability of those steering the destiny of the UPC to arrange for large servings of legal fudge that will keep the show on the road. One need only look to the Northern Ireland Protocol to see how the irreconcilable can be reconciled in a legal document.

      Yes, the UPC might be irreconcilable with fundamental rights guaranteed with the ECHR. It may also suffer from fundamental flaws, including worrying democratic deficits. But the same could be said for the EPC … and there is no sign that any judicial instance will take steps to pull that particular international convention back into a land where the rule of law reigns supreme.

  5. To avoid a UPC disaster, one can only hope that the Italians, who have most to lose (London to Paris/Munich only) and can block the entire UPC thanks to the “authentic interpretation”, strongly intervene by requesting the signature a new protocol which fixes all pending issues, including the London section.

  6. How Breton did not answer a parliamentary question from MEP Breyer:

    https://twitter.com/zoobab/status/1501933238989688833

    The CJEU emphasized the UPLS court model of 2009 was NOT a “common court” as the Benelux Court of Justice (which cooperates with National Courts in order to respect the principle of Autonomy of EU law), the UPC design is still the same as the UPLS on, here mentioned in Opinion 1/09 as the “PC”:

    https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62009CV0001

    “82. It must be emphasised that the situation of the PC envisaged by the draft agreement would differ from that of the Benelux Court of Justice which was the subject of Case C‑337/95 Parfums Christian Dior [1997] ECR I‑6013, paragraphs 21 to 23. Since the Benelux Court is a court common to a number of Member States, situated, consequently, within the judicial system of the European Union, its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union.”

    If you read the Spanish complaint, this point has not been decided by the CJEU, because they could not decide on it for legal reasons.

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