Despite all uncertainty regarding the future, due to the ongoing Brexit saga and the German constitutional complaint, preparations for the Unitary Patent system are quietly going on. The EPO Select Committee gathered information on national measures accompanying the implementation of the system which was distributed among members of the Committee this summer. Also, the epi published an update earlier this week on the ratification of the Unified Patent Court Agreement, the Protocol on Provisional Application, local and regional divisions and languages of procedure in all future member states.
The EPO sent a questionnaire to UP member states inquiring, among others, whether any legislation is envisaged or has been adopted for implementation of the Unitary Patent system, such as amendments to the Patent Act or regulations. Only Belgium, Denmark, Italy, Lithuania, Finland and the UK have already adopted such legislation; in other member states it is ‘envisaged and/or engaged’ or ‘under consideration’.
Almost all UP member states have plans to open the possibility to validate a European patent where a request for unitary effect has been rejected either by EPO or UPC or unitary effect has been revoked. In Greece, France and Ireland, a so-called safety net is ‘under consideration’. Only in the UK a safety net is not envisaged.
Other questions of the EPO concerned the possibility of double protection of a national and a Unitary Patent (‘yes’ in Denmark, Estonia, Germany, Austria, France, Hungary and Sweden, ‘under consideration’ in several other states) and the applicability of the Unitary Patent in overseas territories and areas. In France, the possibility of extension to these territories ‘is being studied’. Of the Dutch territories, ‘Curaçao and Sint Maarten are considering to ratify the UPC Agreement. If they decide to ratify, the UPC Agreement will then also be ratified for Bonaire, Sint Eustatius and Saba’. The UK’s ratification ‘included the Isle of Man’. But although they are part of the Kingdom of Denmark, the UP system doesn’t cover the Faroe Islands or Greenland. The EPO information will be made available to the public once the Unitary Patent becomes operational.
According to the information published earlier this week by the epi on the state of affairs regarding the Unified Patent Court, eleven UPC member states – Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Luxemburg, the Netherlands, Sweden and the UK – have both ratified the UPCA and are (or expressed consent to be) bound by the PPA. About the UK, the report states: ‘Despite the “Brexit”, the UK Government intends to explore legal solutions to enable the UK to stay in the system when it leaves the EU.’ Lithuania, Latvia and Portugal ratified the UPCA but have not yet signed the PPA. Malta also ratified and it will issue a unilateral declaration to be bound by the PPA. Austria ratified the UPCA and signed the PPA, but the protocol still needs to be ratified.
The situation in Germany is explained as well: ‘Upon a complaint regarding the constitutionality of this law, the German Federal Constitutional Court has requested the Federal President to postpone it issuance. (…) Recently, some Members of the German Parliament (including the AfD) asked questions to the German Government regarding the budget for the UPC. The Government’s answer to certain questions might mean that ratification by Germany will be postponed until Brexit and its consequences for the UPC are clear, even if the Constitutional Court would dismiss the case. The responses (…) reveal the ongoing engagement of the German Government to support (also financially) the preparation and ratification of the UPC.’
Ratification of the UPCA in Hungary was delayed due to a decision of the Hungarian Constitutional Court from 26 June 2018, that ratification would not comply with the Constitution. Therefore, an amendment to the Constitution will be necessary.
In Romania, draft legislation for ratification of the UPCA and the PPA was published for consultation in June 2017. In Slovenia ratification was approved by Parliament, but the instrument of ratification hasn’t yet been deposited. Slovenia will issue a unilateral declaration to be bound by the PPA.
Before Ireland is able to ratify the UPCA, a referendum will have to be held, which is unlikely to happen as long as there is uncertainty about the Brexit and the German constitutional complaint. In Cyprus, there is no progress. In the Czech Republic no steps are taken for ratification either. ‘A study carried out reported a negative impact of the UPC on Czech firms and on the Czech economy and budget. It is moreover noted that the present quality of machine translation into Czech must be improved’, according to the epi report. Discussions for a local or regional division with Slovakia ‘are only at the beginning’.
In Greece a consultation on the draft ratification law was completed at the beginning of 2017 and a study commissioned by the government on the impact of unitary patent protection on the economy. The Slovak Republic will wait with ratification until the UP system is operational. ‘Officials are discussing whether a study on the impact of the UPC on the Slovak economy should be conducted.’
The epi summary also includes Poland, Croatia and Spain, ‘being member states of the European Union and potential candidates for joining the UPC in the future’ – an interesting phrase considering the discussion which started after the Brexit referendum whether the UP system is for EU members only or for other EPC member states as well.
In Spain the Unitary Patent package is no longer a current issue, in the light of the uncertainty caused by the Brexit and the complaint before the German Constitutional Court, according to the summary. Croatia is still at a preparatory stage of joining the enhanced cooperation on unitary patent protection. Epi members ‘have been unofficially informed that Croatian IPO has been enticed by the Ministry of Justice to take initiative and to bring the subject to the competent authorities’ attention again.’ The position of Poland, which participated in the enhanced cooperation concerning Unitary Patent protection but decided not to sign or ratify the UPCA, hasn’t changed.
EU information on UPCA ratifications and the support for the PPA.
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If nothing would happen about the UPC, it would clearly mean that its proponents consider that it is dead before the actual announcement of death has occurred.
That therefore preparations continue is nothing surprising and can certainly not be taken as a guarantee that the UPC will ever come into force.
When reading the preceding blog, it also becomes abundantly clear, that the UPC is not for SMEs, and in view of the attitude of certain EU members towards the UPC for some European Countries like Poland.
That Portugal and Slovenia have ratified is no surprise, as they have been lured into the UPC by the promise of arbitration chambers.
Techrights: FINGERS OFF!! Directly or indirectly!
But although they are part of the Kingdom of Denmark, the UP system doesn’t cover the Faeroe Islands or Greenland.
The Faeroe Islands and Greenland are self-governing (autonomous) territories within the Kingdom of Denmark. The two territories have ceded from the European Union and therefore cannot become members of the UPC. Further, they are also not signatories to the EPC. Patent protection for the territories can only be obtained via a national Danish patent application.
Article 38 of the draft UPC agreement specifically mentiones referal of questions to the European Court of Justice. It is probably not a very important core article, but I cannot see how the agreement including this article can come into force in the UK if the UK leaves the EU. To me it looks like the agreement needs to be amended to remove or change this provision, which probably means that it needs to be ratified again by all members. Not impossible, as the agreement remains the same from a pragmatic point of view, but it will likely result in a significant further delay.
Small problem – the UPCA cannot be amended unless and until it comes into force. Thus, if the UK leaves the EU without an agreement before the UPCA comes into force, then the UPCA will be dead on arrival – for the reasons discussed in my comment on the previous UPC-related post.
Also, I take issue with your comment that Article 38 of the Statute is “probably not a very important core article”. The reason for this is that the preliminary reference procedure is a cornerstone of the EU legal system and so is an ESSENTIAL prerequisite for compliance with EU law. In my view, there are already strong reasons to doubt the UPC’s compliance with EU law, even with a fully functioning Article 38 of the Statute. However, rendering that Article ineffective (at least for the UK) would make non-compliance with EU law an absolute certainty.
Concerned, you appear to be under the misapprehension that the UPCA cannot come into force post-Brexit. Your other post you refer to does not give any persuasive reasoning as to why this should be so and would appear to be an opinion which is not shared by the legal community. As required by the Agreement on a Unified Patent Court, the UK has ratified the agreement. There does not appear to be a requirement that the UK is still a member of the EU on the start date.
Hmmmn. So you believe that a majority of “the legal community” is of the view that even if Article 1 of the UPCA is rendered nonsensical / inoperable by virtue of the UK no longer meeting the definition of “Member State”, the Agreement can still enter into force.
I agree that this is an interesting and potentially debatable point. However, I think that interpreting the UPCA according to the Vienna Convention would likely lead to the conclusion that the purpose and context of the UPCA was to create a court common to the EU member states … with the consequence that the Agreement becomes null and void under circumstances where it cannot possibly achieve that objective.
So there is no “safety net” even under consideration in the UK. This seems to me to be yet another strike against the UPC.
Who in their right mind would risk requesting unitary effect when the UK’s participation remains highly doubtful and when there is no obvious way of recovering rights in the UK for any EPUEs that might, after grant, suddenly cease to have effect in that territory?
This would leave the UPC with only those patents that are not opted out of the system. My understanding is that this would be slim pickings indeed. Thus, even if miracles happen and the UPC struggles into life, it looks like anyone who is inclined to sign up as a UPC judge will be twiddling their thumbs for at least a few years. Or can we expect something else to be pulled out of the UPC-promoters bag of tricks to somehow drum up business for the UPC (and, by happy coincidence, for the litigation firms that will be handling the UPC litigation)?
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