It is self-evident that the Unitary Patent system is good for Europe. The project will attract the best judges, there is a good set of procedural rules, the industry wants it, this is a ‘no brainer’ and the start of the system is taking too long.
Alexander Ramsay, chairman of the Preparatory Committee of the UPC said this at the Unitary Patent Package Conference, 8 and 9 february 2018 in The Hague. Ramsay, who has been on the dossier for ten years, five of them in the PrepCom, hailed the companionship and the ‘extremely dedicated people’ he has been working with.
According to Ramsay, the delays in the UP project, caused by the Brexit vote of 23 June 2016 and the German constitutional complaint which was filed last year against ratification of the Unified Patent Court Agreement (UPCA), are hard to accept. Still, the opinions of several associations (EPLIT, GRUR, DAV, BRAK, EPLAW) which had been requested by the German Federal Constitutional Court (FCC), have made him hopeful the Unitary Patent project will come through. All of these organizations have concluded the complaint should not be admitted by the FCC, or be rejected as unfounded.
Ramsay hopes the UK will complete the ratification formalities of the UPCA and the Protocol on Privileges and Immunities soon and that it can stay in the UP system post-Brexit. It is obvious, a ‘no brainer’ as well, according to the chairman of the PrepCom, that long-term participation of the UK is in the interest and to the benefit of all. ‘As a series of scholars have explained, this is legally possible. It depends on the political will.’
It is not easy to prepare for the system and be ‘almost ready for an indefinite period of time’, according to Ramsay. By now 15 Member States have ratified the UPCA, which means that quite a high number of states will be part of the UP system once it comes into effect. The Czech Republic, Slovakia, Cyprus and Ireland are not expected to be in this first group.
Regarding the Protocol on Provisional Application (PPA) of the UPCA, support from Germany and two more states is necessary. The protocol will allow parts of the UPC Agreement to be applied early. This includes final decisions on the practical set up of the Court, the recruitment of judges and testing of IT systems. The provisional application phase will also be used to allow for early registration of opt-out demands.
Despite the uncertainty and delays, technical preparations are going on, Ramsay explained during the conference. The Preparatory Committee formed five ‘interim teams’, which have to make sure everything works once the period of provisional application starts.
For the HR team, the recruitment of judges is a huge challenge. As Ramsay explained: ‘We cannot do the final recruitment, interviews, appoint judges before the start of the PPA.’ But plans have already been made how to organize this process. There will probably be interviews with candidate judges in four different locations. Teams of interviewers will be formed, who will need to stay in hotels. ‘This is a big operation that needs to run smoothly.’ Also during the PPA, the judges and other staff of the court will have to be trained.
The interim Registry, FI and Corporate functions teams are busy, among others, with finding resources so the court can do what it has to do – ‘The delay costs money’ – creating an HR system, an accountancy system etc. ‘We’re trying to use the time that we have to make sure the system works when we’re starting’, Ramsay said.
The interim IT team, chaired by Kevin Mooney, is working on the CMS system. According to Mooney, it turned out to be very complicated to translate the rules of procedure into a working CMS, although the work is progressing steadily. He explained the CMS will take parties through the steps of the proceedings. Generally, they will have to do most work offline and then upload documents.
Mooney also said some minor changes of the Rules of Procedures can be expected, for instance concerning the procedure to opt patents out of the jurisdiction of the UPC. Under the current rules, any mistake in the opt-out means it will have no effect until it is corrected. It’s under discussion however whether an exception should be made for minor mistakes, for instance in a name. Another issue still under debate is what should happen if the wrong patent number is used when registering an opt-out.
Although Kevin Mooney admitted he has had to change his predictions about the start of the UPC many times, he still pictured what may happen in the upcoming year, at least if the German constitutional complaint is not admitted or otherwise rejected. The UK may be in a position to ratify in March, with the PPA and the process of recruitment, appointment and training of judges and other court staff starting in April or May.
The sunrise period, during which patents can be opted out of the UPC, could start in October, and finally, by January 2019, the UPC could open its doors for cases, Mooney hopes.
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I hope the prep comittee petions the German government, the German federal president and the consitutional court form time to time to be speedy in the matter. I am sure it has a different weight when Ms. Merkel or Mr. Steinmeier informally or even formally ask about the state of the proceedings than when I do it 😉
I find the following an interesting statement:
“Ramsay hopes the UK will complete the ratification formalities of the UPCA and the Protocol on Privileges and Immunities soon and that it can stay in the UP system post-Brexit”.
This is a clear (albeit indirect) acknowledgement that the UK’s post-Brexit participation is not guaranteed. Nice to see reality finally acknowledged.
However, it is a shame that it stops there. This is because many of the uncertainties over the UK’s continued participation in the UP system are equally applicable to the question of whether the UPC Agreement is (or will continue to be) compatible with EU law.
The clear (and repeated) indications from Westminster are that the UK will be leaving both the single market and the customs union, as well as the jurisdiction of the CJEU. The rationale behind this is that only by doing all of this will the UK be able to control immigration from EU Member States, and to conclude its own trade deals with other countries / regions. The government has strong drivers to stick to this rationale, including avoiding both electoral suicide and disintegration of the governing party.
It is therefore wishful thinking to believe that there can somehow be special deals to suit the interests of specific (eg financial or legal) sectors. The UK government has far more pressing problems than working out how to strike a deal that (somehow, magically) submits the UK to the jurisdiction of the CJEU (AND all potentially relevant EU laws) just for the purposes of patent and SPC disputes at the UPC. An example of the more pressing questions is how, if the UK is leaving the customs union, will it be possible to avoid putting in place a “hard” border between Northern Ireland and the Republic of Ireland? My suggestion is that hopes of the UK staying in the UP / UPC system should be put on hold until, at the very least, a workable solution to the Irish problem has been found.
Whilst such realities may not be pleasant to contemplate, we should at least acknowledge them. A good first step on this path would be, BEFORE the UPP comes into force, to pose questions to the CJEU about compliance of the UPC Agreement with EU law. The only way for this to happen is if the BVerfG admits the constitutional complaint for a full decision. Thus, arguing against admission of that complaint hardly seems a sensible strategy, as it amounts to nothing more than a wish and a prayer that the whole system will not come crashing down when reality finally bites.
Should you have expected anything else than an ode to the UPC you would have been disappointed.
Who said that the UPC is good for Europe? Those who intend to immediately benefit from it by filling their own purses. An objective look at the filing figures published by the EPO shows that it is certainly not the European Industry. At least the story with the SMEs has apparently stopped being served by the head of the prep-com.
The head of the prep-com seems to be a bit naïve when he thinks that, provided the UK has ratified before Brexit, it may stay in the UPC after it. Wishful thinking at its best. How can a country having broken its links with the EU can stay in an agreement meant to apply EU law? In any case there are more important things for the UK government to deal with than to insure that some law firms can fill up their pockets.
One of the authors of the RP, Mr Mooney not to name him, resurfaces. That “it turned out to be very complicated to translate the rules of procedure into a working CMS” should not be surprise as they are rather complicated. Why this? Simply for certain lawyers to have the upper hand.
I fully agree with Concerned Observer that the only way to clarify lots of issues with respect of the UPC is to request an opinion from the CJEU. The sooner the better.
To be well administered, justice has to take its time. It is thus naïve to think that putting pressure on the GFCC will accelerate matters. Before the GFCC deals with the UPC, it will have to decide on complaints relating to the EPC which have been admitted.
Although the EPC has no organic link with the UPC, it is difficult to deny strong indirect links. In the present situation, banking on a summary rejection of the claim against the UPC is at least gambling at high level in spite what some learned institutions might have said.
Both the EPC and the UPC have a big problem in common: the absence of a revision possibility in the substance. A revision is only possible for procedural aspects. The absence of revision in substantive matters is the biggest drawback of both treaties. The possibility for the UPC to bring prejudicial questions to the CJEU does not compensate this drawback.
It is only once the decisions on the EPC will have been published, that we will be in a position to make an intelligent guess about the fate of Mr Stjerna’s complaint.
Techrigts: while you request others to respect the rule of law, you take great deal of not doing so yourself. You did not respect my wish not to use my comments even by a mere link. People in glass houses should not throw stones. So fingers off in whichever way you may think of.
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