Despite the uncertainty about what will happen in Germany with the Unified Patent Court Agreement, the UK is heading for ratification of the UPCA and preparations for the court are going on.
In the UK, the legislative steps have been completed and it is expected the UK will complete all formalities by depositing its instrument of ratification with the General Secretariat of the EU Council in March or April; it will be the 16th member state of the Unitary Patent system to do so.
The Unified Patent Court Agreement will enter into force once the UK and Germany have completed the ratification process. In Germany both chambers of parliament gave their support to the UPCA last year, but the ratification process was suspended after a constitutional challenge was filed against the UP system.
The German Federal Constitutional Court (FCC) is yet to decide whether to hear the case. If it does, this could considerably delay and even block the start of the Unitary Patent system. At the Unitary Patent Package conference last week in The Hague however, several observers showed optimism that the complaint will be dismissed, or rejected as unfounded. They based this on reports of several organizations which were requested by the FCC in the case. In these, experts in constitutional law point at jurisprudence that an individual cannot complain before the FCC about (in)compatibility of EU law with constitutional law, among others; they are convinced the other elements of the challenge are inadmissible or unfounded as well.
At the conference, chairman Alexander Ramsay of the UPC Preparatory Committee said work to prepare for the UP system is going on. ‘We are trying to use the time that we have to make sure the system works when we’re starting.’
A detailed planning has been made, among others, for the recruitment, training and appointment of UPC judges. Simmons & Simmons partner Kevin Mooney, chairman of the Drafting Committee and of the Expert Group of the UPC, explained this is linked to the start of the period of provisional application (PPA) of the UPCA. This period, during which practical preparations of the Court will be finalized, will last about 8 months in which, to begin with, UPC judges will be appointed.
According to Mooney, four to six months after the start of the PPA there will be a three-day training at the CEIPI in Paris for technically qualified judges, who need ‘to be introduced into the ethics of being a judge’. In the Budapest based training centre of the UPC, 95 appointed judges (45 legally and 50 technically qualified) will have a four-day training on the Rules of Procedure, including a mock trial of two days. The training will be in mixed groups of around 30 people.
In month six and seven, all 95 judges and registry staff will be trained three to four days to use the content management system of the Court, again in mixed groups. After this, in month eight, the UPC can start functioning.
In 2015, a group of 36 judges from smaller IP countries such as Bulgaria, Malta, Greece, Romania and Slovenia, were trained already in Budapest. In the past, some observers have questioned the quality of judges from countries with little experience in patent cases, but Kevin Mooney was impressed with the judges he trained.
He also said that, because of the delays the UPC has been facing, there might be a new, limited round of recruitment of UPC judges, once it is clear what the timetable for the start of the UPC will be. A final decision on this has not been made.
Preferibly before the decision of the FCC on the German complaint is known, the UPC Preparatory Committee will have to solve a crucial issue. Support from at least three member states for the Protocol on provisional application of the UPCA, including Germany, is necessary before the PPA – and the UPC – can start.
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It is very nice to come up with every single piece of news, as small as it can be, and therewith try to give the impression that the UPC is on the doorstep. I would however not be so vehement about it.
For a start I do not think that the GFCC will dismiss the case as some people hope it will do. In that they have vested financial interests in the matter, you could not expect a different stance. I would certainly not share the optimism of “several observers that the complaint will be dismissed, or rejected as unfounded”. This is wishful thinking at its best.
First, there are fundamental problems with the judge’s independence at the UPC as well as at the EPO. At the EPO at least they have some way of review should they get dismissed. We have just had a famous example.
Designation of judges and removal from office is to be done by the famous Administrative Committee of the UPC. If a judge is of the opinion that he has not been fairly treated should he be removed, where can he request a revision of this decision? The same applies should his contract not be renewed. Neither the UPC nor the Statute are saying a word about this. I do not call this independence.
The famous Administrative Committee will have the power to amend the Rules of Procedure. The UPC suffers from a fundamental drawback which is that too much has been packed in the Rules of Procedure. This might give a great flexibility, but it can also lead to some drastic changes by which the right of the parties can be severely curtailed.
For the time being, there is a possibility for review of decisions according to R 238A UPC. But his could be amended by the Administrative committee of the UPC. This compares with Art 112a EPC. What if the Administrative Committee decides to amend this procedure or at least curtail it severely? There is a fundamental difference: at the EPO any changes to this kind would require a diplomatic conference, and not just a decision of the AC (C being for committee or council).
In other words the level to be reached in order to change this is much higher at the EPO than at the UPC. That a majority of ¾ of the Contracting Member States represented and voting, is needed is one thing. But what if some member states abstain in the Administrative Committee of the UPC. Will abstention be counted as a vote?
I will stop here, with one further comment: the GFCC will probably not decide before having taken a decision in the four complaints raised before it and relating to the functioning of the boards of appeal of the EPO. UPC and EPC are not directly linked, but no one can deny strong indirect links, as a UP is a patent granted by the EPO.
Further, the EPC and the UPC suffer both from a big problem. Review of decisions of the UPC and of the boards of appeal is only possible for procedural reasons. There is no mechanism foreseen or possible to have a decision of the UPC or of the boards of appeal of the EPO to be reviewed as to its substance. The possibility to defer to the court of appeal and the possibility to refer a question to the Enlarged Board of Appeal is not opened to the parties, and cannot replace a proper revision mechanism as it exists in national judicial systems.
It is thus nice to train judges for the day the EPC will open, but as long as the Damocles sward of the complaints before the GFCC is not removed, all those efforts might be for nothing. Have, or will, the trainee judge’s attention be drawn to the problems raised above here during their training? I strongly doubt it. But the question exist, and cannot be swept under the carpet.
And I have not said a word about the possible consequences of the Brexit….
Pushing for a quick start of the UPC would have the advantage that facts would be created, and it would be difficult to go back. Hurrying in order to hope some of the problems will disappear or not be noticed is anything but wise.
I remain a strong supporter of the need for harmonisation of the way IP rights are implemented in Europe, but I believe that the UPC as it stands, is not the best way to achieve this goal. There are too many problems that have not even received the outline of a draft response.
But stop trying to pull wool over our eyes, rather tackle the problems which need great attention, and do not come up with pseudo information.
Techrigts: FINGERS OFF! You are intelligent enough to know what it means: directly and indirectly, even by a mere link (as recently done).
I think the GFCC might decide faster than many expect. From all we know, the GFCC did not issue an injunction preventing the Federal President to sign the law but has reached some sort of “gentlemen’s agreement”. So far so good. However, the law concerining the GFCC (BVerFGG) recites in § 32 (6) that injunctions of the GFCC have a maximum duration of 6 months. They may however be repeated with 2/3 of the votes of the senate.
My argument is now that the GFCC is aware of that provision and is also aware of the constitutional problems that may arise if the GFCC ignores the formalities in § 32 (6) and carries on based on an informal gentlemen’s agreement for much longer than the six months a normal injunction would have lasted. The six months from reaching the gentlemen’s agreement with the Federal President should be over soon (August last year?!?!)
According to the post, Kevin Mooney said that “because of the delays the UPC has been facing, there might be a new, limited round of recruitment of UPC judges, once it is clear what the timetable for the start of the UPC will be. A final decision on this has not been made.”
This statement evokes the Impression that the selection of judges is more or less complete. This is, however, at odds with the official communications by the administrative committee (https://www.unified-patent-court.org/news/upc-judicial-recruitment-update):
“Whilst the preparation of candidates’ selection has continued, the commencement of the next phase which would include calling candidates for interview, has to be re-scheduled as the appointment procedure, which will be led by the future Committees of the UPC, is dependent on the entry into force of the Protocol on Provisional Application and subsequently the Agreement on the Unified Patent Court.”
As some of the smaller states have not complete ratification, even some of those (legally qualified) judges who received preliminary training might be excluded from appointment once the PPA enters into force.
Techrigts: FINGERS OFF!