After a year of stagnation concerning the Unitary Patent project, chairman Alexander Ramsay of the UPC Preparatory Committee has published a year end message on the committee’s website.
The message makes clear that despite the expected and unexpected “hurdles” of the Brexit and the German constitutional complaint against the ratification of the UPCA, which “call for the greatest patience and resilience”, the preparations for the Unified Patent Court have continued.
Ramsey: “By far the biggest exercise my team oversaw this year was the top-up recruitment campaign in the summer. I am confident that we have given equal opportunity to those who wish to be part of the UPC, a further occasion to present their qualifications and apply for a judicial position. Until we enter the provisional application phase we will not be contacting any candidates, but I thank them for their support and patience.”
Apart from the recruitment campaign, the committee has “continued with our workshops involving participants from Signatory States. Building on those previously held in Luxembourg and Munich, earlier this year we held our third workshop in Milan and my team are preparing our fourth in The Netherlands in January 2020. These workshops are invaluable to bring together operational staff ensuring the foundations of training and awareness are in place.
Another area where a lot of effort has been expended is the case management system. I am proud of the team’s achievement of ensuring all major functionalities have now been implemented and the configuration for the sunrise period is ready. The team have also conducted an accessibility impact analysis of the system and over 80 modifications and improvements have been agreed. The team will now look to review and improve the UPC website.”
In his message, Ramsey also refers to the recent JUVE interview about the future of the UPC project, in which he said he thinks that in case of a dismissal of the complaint against the UPCA ratification, “it would be realistic to expect the UPC to be operational in early 2021”, at least if the “German government then takes the decision to proceed with its ratification of the protocol on provisional application immediately (…)[, which] will run for at least eight months.” (see also the report on this blog)
Ramsey’s optimism was questioned among others on this blog by patent attorney Thorsten Bausch, who concluded that because of Brexit complications and the German constitutional complaint “I must continue to pour some water in the wine of the notorious optimists and proponents of the soon-to-become-reality UPCA”. He also wrote: “JuVe’s punchy headline “wheels in motion for the UPC” may very well be premature by a few years, even if one ignores for a moment the astonishing fact that quite a lot of the UPC supporters seem to be pretty certain how the Federal Constitutional Court will decide on this appeal. I find this a bit patronizing and tend more towards an open wait-and-see attitude.”
Alexander Ramsey however, remains confident things will turn out for the best, although his message sounds somewhat more cautious and vague than in the JUVE interview: “I will continue to work toward a solution and I know I have the best possible team to help me do that. I want to take this opportunity to thank the much wider stakeholder community who follow the Unified Patent Court and its progress. It has been a long road, one with many speed ramps, nonetheless I am confident that when the time is right we can progress with necessary speed.”
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When Mr “Alexander Ramsey [however,] remains confident things will turn out for the best”, he must be one of the few people, next to those poised to fill their pockets, to believe in this self-prophecy.
Seeing the result of the vote in UK, I find it daring to think that the UPC will start “in early 2021”. I have rarely met such a level of auto-suggestion.
I am rather agreeing with Mr Bausch and his much more cautious approach. As he said, nobody knows what the decision of the German Constitutional Court will be, and should it be positive for the UPC, the German government made it clear not to rush ratification until the situation stemming from Brexit, which is now ascertained, has been clarified.
Under those two conditions, and since the Brexit transition period ends on 31.12.2020, envisaging an opening of the UPC in early 2021 is not even wishful thinking, it is denial of reality.
Two scenarios are possible, should the UPC enters into force as it stands:
– As Brexit is now certain and not only a vague possibility, I doubt very much that the CJEU is willing to tolerate that decisions valid in the EU can be taken by judges sitting outside the EU. EPLA was killed in C 1/09 for this reason.
– Should the Administrative Committee of the UPC decide to delete London and replace it by any other European city, I can see very heavy constitutional problem in a number of contracting states. And there again, will the CJEU play along this game?
By the way, I do not understand that such a clause as amending an international treaty by an administrative committee could have been at all envisaged, and then ratified. That a government can, after the decision request a diplomatic conference is not a solution. It completely ignores the sovereign rights of any parliament in the member states of the UPC, as it presupposes that a government disagrees.
On top of this removing London is certainly not in order “to bring it into line with an international treaty relating to patents or Union law”, unless one considers that the UPC is a treaty which allows a kind of self-correction.
It is clear that Mr Ramsay is in a difficult position. He cannot say that the UPC will take many more years to come into force, as it means that it might never come into force, but one would expect a bit more restraint and not some prophecies which cannot become true.
I fully agree that unification of case law across Europe is a good cause to thrive for, but there are other ways to avoid decisions like first Improver and later Actavis/Ely Lilly.
The way the UPC has been stuffed down our throats, by a self-co-opted group of people, serving their vested interests, and resulting from an amazing lobbying campaign, is not the right one.
Techrights: FINGERS OFF!! Directly or indirectly!!
People like to spout the line “Where there’s a will, there’s a way” as if it is the self-evident truth. But it isn’t. Recent history proves that. For politicians knowingly to lead the voters on, in such beliefs, is to betray them.
Examples? First, the notion of a friction-free, formalities-free land border between EU Member State Ireland and a non-EU Member State UK. That was flagged up by the experts, even before the UK referendum, as THE insoluble problem of BREXIT and, guess what, despite all the hot air and Johnsonian bluster, it is still just that. The only solution is to cleave NI off from the UK Union.
Second, the notion of an EPLA that includes a non-EU Member State, a UK with an ever-fiercer mindset, bent on breaking away from the EU so as to “take back control”. Is that the sort of thing they mean when they utter the words “No Brainer?” The country of my birth is more and more painful to observe.
Readers will surely be able to supply other examples.
Given that the UK government has stated that it intends to allow even the lower courts in the UK to depart from the CJEU’s judgements, I think that it would be fair to conclude that Mr Ramsay lives in the hope, but NOT the expectation, that a miracle will occur. The miracle in question would be the discovery of some way of allowing the UK to diverge from the case law of the Court of Justice of the EU whilst simultaneously being allowed to participate in a court system that demands strict adherence to that case law.
Of course, one of the key provisions of EU law by which the UK most definitely would need to be bound (for the purposes of participating in the UPC) is Article 267 of the TFEU… namely the provision that requires, in specific circumstances, UK courts to refer preliminary questions to the CJEU. However, given that the UK government is determined to ensure that its national courts are not bound by any judgements of the CJEU, it seems that the chances of the UK’s (legally valid) participation in the UPC are close to zero.
I fully agree with Concerned Observer.
There is also another question which goes along the same direction. How can a judgement of the UPC be enforced in UK, or a judgement taken by a UK local division, or the London section of the Central Division, be enforced outside UK once UK is not any longer Contracting State of the EU. The Brussels I regulation on mutual recognition will not any longer apply. May be the new Lugano Convention could apply, but we are from it.
There are further problems of liability for the Court itself, Art 5 UPCA, or for the Contracting States, cf. Art 23 UPCA, which directly quotes Articles 258, 259 and 260 TFEU.
And Mr Ramsay thinks that all those problems will have disappeared by miracle so that the UPC will take office in early 2021. Should he believe this really, then it is difficult to help him.
It reminds me of an old teacher of mine who used to say: if you stick your head in the sand, do not wonder if you get your bottom smacked. I do not wish that for Mr Ramsay, but it depends on him.
I do not hold my breath waiting for sensible answers to the above questions, and I agree that there is no, even remotely, plausible answer to your question and those above. The silence is becoming deafening, and the few utterances of any of the proponents of the UPC should be taken at face value and with a huge pinch of salt.
Where are all the Pors, Tillmann, Hoyng, Cordery and consorts? They keep hidden, leaving the poor Mr Ramsay to get all the blame. No very kind, I would say.
Techrights: FINGERS OFF!!!