The preparations for the Unified Patent Court are going on so the court can start functioning as soon as possible if the German Constitutional Court rejects the challenges to the Unitary Patent project.
The UPC Preparatory Committee has declared this in an update which was published on its website on 19 december 2018. It is the first report of the committee since 27 April 2018. The update makes no explicit reference to the situation in the UK, despite the fact that many observers agree changes to the Unitary Patent project will be inevitable because of the upcoming Brexit, whereas others think post-Brexit UK membership of the Unitary Patent is impossible – even more so in the case of a hard Brexit.
There is no reference either to a time schedule for the start of the functioning of the UPC. In a hearing before the House of Lords late October, Kevin Mooney, chair of the Drafting Committee of the Rules of Procedure, had said he believed the court could come into existence at the end of next year.
In its update the Committee writes:
‘2018 has been a year of mixed highs and lows. This year has seen two more Signatory States ratify the Unified Patent Court Agreement, namely the UK and Bulgaria which means there are now 16 ratifications in total of the Agreement, well over the number required. We still await the outcome of the complaint pending before the Constitutional Court in Germany before the project can move into the next phase, the period of provisional application.
Despite the current, somewhat unpredictable environment, the technical and operational preparations are continuing allowing for the project to move at pace in the event of a positive outcome from the German Constitutional Court.
The status of the project is constantly being reviewed and the Chairman continues to meet with the Executive Group and the operational team on a monthly basis.
Those that have applied for judicial positions in the Unified Patent Court are being contacted separately.’
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Dear Kluwer Patent Blogger,
It is certainly interesting and useful when Kluwer Patent Blog reports on the latest update of the UPC Preparatory Committee. On the other hand, let’s be honest, enthusiasm about the future looks and sounds different.
But to add comments uttered by Kevin Mooney is not appropriate at all as his prediction is based on rumours he spread before the House of Lords. In a Blog of November 7, you have reported about those rumours. No need to repeat. Any cause is worth being defended, but not by rumours spread by people who should know better.
According those rumours, the German Federal Constitutional Court should by now have taken a decision on the UPC. We have thus today the certainty (was there ever an early certainty?) that there were mere rumours, not to say fake news.
Rumours are not something professionals should indulge in, and they were spread against one’s better judgement. But any straw to claw on might be good when one sees his hopes for a solid return on investment crumbling.
The more time flies by, the more I feel that the decision on the UPC will take longer than expected. Not to forget that there are also complaints against the Boards of Appeal of the EPO pending before the same Chamber of the GFCC. It would be a surprise should the GFCC decide on the UPC before deciding on the EPO.
And even if the decision is positive for the promoters of the UPC, it is anything but certain that the German Government will rush to deposit the instrument of ratification. As long as the situation created by the Brexit is not clarified why would it be compelled to do so? I also refer to T. Bausch’s comments on November 27. I further refer to a publication of Bardehle-Pagenberg about the topic in September of this year.
In the recent years Premier Cercle organised a conference on the UP/UPC in Munich in July. I have up to date not yet seen any announcement for a similar conference in 2019. Should the future of the UPC be as bright as some want us to believe, I am sure that such a conference would already have been called. I do not want to see in this a negative sign, but at least it says a lot.
Techrights: FINGERS OFF!!!
Directly or indirectly! I do not wish my comments to be misused for all the weird theories you have about the EPO or the UPC!