The provisional application period of the Unified Patent Court Agreement can start before the end of this year. That is the expectation of Winfried Tilmann, consultant at Hogan Lovells and one of the founders of the court. In an interview with Kluwer IP Law, Tilmann comments on the German government’s initiative to re-ratify the UPCA and the possibility of a last minute turnaround of the UK – which has said it no longer wants to be part of the UP system. He does not believe the Federal Constitutional Court (FCC) in Germany may think the UPCA violates the German constitution.
Was the long awaited decision of the FCC to declare void the German ratification of the UPCA a great disappointment for you?
“It came as a surprise. It was for the first time that the CC (1) granted a citizen the right to appeal against an act of Parliament invoking the disregard of alleged voting rules and (2) required a 2/3 majority for a transfer of competences in the context of international cooperation based on international law.”
The German Minister of Justice and Consumer Protection, Christine Lambrecht, reacted surprisingly quickly to the decision of the FCC last March. Less than a week later she declared: “I will continue to work to ensure that we can provide the European innovative industry with a Unitary Patent and a Unified Patent Court.” Observers said it shows how strong the lobby is behind the creation of the Unitary Patent system. Some pointed at the similarities between an article you published in GRUR 2020, 441 and the explanatory note of the Ministry of Justice accompanying the new draft ratification bill for the UPCA. (see comments below this earlier blogpost) Are you the architect behind the lobby and the memorandum?
“Germany, together with the large majority of EU member states, is pursuing this project of international cooperation in EP unification, protection and control for 40 years now and patentees worldwide are waiting for such completion of the European patent system to come for the same long period. As far as I can see, German inventors and industry are continuing their strong support for this modern system completing, at the court level, the central grant system of the EPC. The project does not need a lobby to persuade the German government, since it is determined at its own will. And the German government does not need advice on how to move forward, because it knows.”
What is your opinion about the draft bill and the German intention to re-ratify the UPCA as soon as possible?
“I agree with both.”
What about the position of the UK? It completed the ratification process despite the Brexit referendum of 2016, but earlier this year the UK government announced it will not participate in the Unitary Patent project. However, there has been no official statement to that effect. Should the German government contact the UK government and/or the UPC Preparatory Committee before completing the ratification procedure – which will launch the entry into force of the UP system – in order to prevent the UK becomes a member of the UP system against its will?
“The UK, until now, has not effectively withdrawn its UPCA membership based on signature and ratification. It has signalled its intention to do so only informally. The other CMS must stay prepared for both, a withdrawal and a last minute turnaround to stay which would be most welcome. It is for the UK to act. Germany’s ratification bill must proceed independently in order to allow the entry into force of the Protocol on provisional application so that the set-up preparations can continue. When these are completed, Germany may deposit its instrument of ratification with the EU Council.”
Do you agree that, regarding the UK withdrawal from the UP project, the Vienna Convention on the Law of Treaties (VCLT) will apply, as there are no withdrawal provisions in the UPCA? And that, in view of article 56(2) VCLT, the UK will stay a member of the UP system at least 12 months from giving ‘notice of its intention to (…) withdraw from’ the UPCA?
“It follows from the definition, in Art 2(g) VCLT, of the word ‘party’ used in Art 52 that Art 52 is applicable only after the Treaty has come into force. It may be derived from Art. 25(2) VCLT governing provisional application that before that date cancellation by a State is possible by simple notification.”
The explanatory memorandum of the German draft bill says the London branch of the UPC division could be relocated provisionally to Paris and Munich, pending a decision on its final destination. Who is competent to decide about the final destination?
“Any change of Art. 7(2) UPCA and Annex II would be subject to ratification by all CMS. This would postpone the beginning of provisional application and entry into force for a considerable time. Better to live, for the time being, with the legal situation as created by a UK withdrawal: The remaining parts of the central division (not London) may be established and will be able to perform the London duties in the beginning. The distribution of these duties between the two instances remaining may be decided upon by a so-called ‘subsequent agreement’. According to Article 31(3)(a) VCLT, in the interpretation of international treaties, account shall be taken of any subsequent agreement between the contracting parties on the interpretation of the treaty or the application of its provisions. The draft bill also rightly mentions the provision of Article 31(3)(b), according to which account must be taken, in the same way, of any subsequent practice in the application of the treaty which shows the agreement of the contracting parties on its interpretation. No ratification of such accord being necessary.”
The German draft ratification bill repairs a formal issue, the fact that there was no two-thirds majority when the Bundestag and Bundesrat ratified the UPCA. The FCC suggested however, there may be substantive deficits as well with the agreement, most notably the point that unconditional primacy of EU law, as stipulated in Article 20 of the UPC Agreement, may violate the German constitution. Shouldn’t the German government have taken this into account?
“There is no indication (‘Anhaltspunkt’, mn 166 CC-decision) whatsoever that the German legislator, by means of the ratifying bill, will be giving the UPC the power to apply EU law even if it is in breach of German constitutional law. Such a will cannot be assumed, if only because, according to the proposed draft bill, the explanatory memorandum of the ratifying law expressly contradicts such an assumption.”
A consultation has started on the new draft bill. Is it normal in Germany not to publish the names of the organizations and associations that are being consulted? What kind of feedback can be expected?
First question: yes. Second question: It is expected that the feedback will be overwhelmingly positive.
What is the next step after the consultation period?
After evaluating the comments the Justice Ministry will prepare the Bill (with or without changes) for an approval by the Cabinet. After approval the bill will be sent to the Bundestag and the Bundesrat (the chamber of Länder-representatives) for discussion and eventual decision. Both will have to decide by a two thirds majority. Finally, the President will sign the bill and the Protocol. The latter will trigger the provisional application of the UPCA-parts necessary for establishing the UPC. When preparations are completed, Germany will deposit its instrument of ratification with the EU Council.
When do you think the German ratification procedure can be completed?
“By the end of this year the bill is expected to have been passed so that the provisional application period may start.”
You’ve been a staunch supporter of the Unitary Patent project. Why is this system so important in your view? Is it really beneficial for SMEs, as has often been said in the past by its supporters, or is it mainly beneficial – in the words of a critic below this blogpost – for “the “Big” industry and lawyers who hope to fill their pockets when litigating before the UPC?”
“First question: I share the view of patent owners worldwide. The system completes the European patent system raising it to the same level as the systems of the US and China.
Second question: The SMEs belong to the beneficial owners of the new system. Accused of infringement they may be sued only before one court and may challenge the validity of the plaintiff’s patent there. If their own patents are infringed, they may bring their case before the same one court, also in that respect avoiding costly multiple national actions. The same applies for not so small entities.”
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“It may be derived from Art. 25(2) VCLT governing provisional application that before that date cancellation by a State is possible by simple notification”
Well, you have got to hand it to Herr Tilmann. I mean, who else could have come up with the idea that a “simple notification” from a Contracting State could have the same effect as formal withdrawal of an instrument of ratification?
I had been under the impression that, unless and until it withdraws its instrument of ratification, a State that has ratified an international treaty not only remains a Contracting State to that treaty but is also legally obliged (by Article 18(b) VCLT) to “refrain from acts which would defeat the object and purpose” of that treaty.
I had also been under the impression that Article 25(2) VCLT only applies if and when a treaty is subject to provisional application … which, of course, will NOT be the case for the UPC Agreement unless and until Germany ratifies the Protocol on Provisional Application (PPA).
Of course, if the UK does withdraw its instrument of ratification of the UPC Agreement, then this means that the PPA cannot enter into force. This is because Article 3(1) of the PPA makes the UK’s ratification of the UPC Agreement a requirement for entry into force of the PPA. It may also have terminal consequences for the whole Unitary Patent Package.
On the other hand, if the UK does NOT withdraw its instrument of ratification of the UPC Agreement, then CJEU opinion 1/09 makes it clear that Agreement will contravene EU law (at least after the end of 2020).
So, pressing ahead without any clarity regarding the UK’s position means either that there will be no provisional application period (with consequences including making it impossible to recruit judges) or that the court will contravene EU law. And this is without even considering the possibility that Germany may now be precluded from ratifying the UPC Agreement, either by the AETR case law of the CJEU or by its own Basic Law (as per para 166 of the FCC’s decision).
So, bearing all of this in mind, why would any sane lawyer think that it is a good idea to press ahead regardless?
and patentees worldwide are waiting for such completion of the European patent system to come for the same long period. As far as I can see, German inventors and industry are continuing their strong support for this modern system completing, at the court level, the central grant system of the EPC
I see you’re working more for non-EU countries. And a few select, multinational German companies, whose opinions are therefore the ones you can see.
I wonder what the BVerfG will say if called upon again, and pointing to the flaws otherwise indicated in their opinion, and why Government has not commented or reacted upon those.
No question asked about the constitutional complaints.
No mention of the court decision on “this agreement is only open to EU member states”.
No mention neither of the more expensive costs of defense for SMEs:
https://www.stjerna.de/files/Unipat-SMEs.pdf
IPO: “The costs of the new system are likely to hit SMEs the hardest.”
I’m enjoying this thread, and laughing at the words picked out by commenter “One of those” in particular that extremely revealing choice of words “As far as I can see….” to open the sentence.
People old enough to have reached positions where they decide the question UPCA Y/N? will well remember Simon & Garfunkel back in the 1970’s singing “A man hears what he wants to hear and disregards the rest”. No different, I would say, between hearing, seeing and selective memory. The cognitive dissonance of the human brain is a timeless wonder, not least in the corridors of power in Brussels.
As an Englishman in Germany, I find it striking, how difficult people find it, to distinguish fact from the opinion of the leading expert. It seems to be a bit of a “chicken and egg” situation. Is it the predisposition to trust the expert that comes first? Or is it the self-confidence with which the experts deliver their opinion that predisposes people to accept them?
And why the English scepticism (even ridicule) of self-important pontifications of experts? Perhaps it comes from our adversarial system of civil litigation, where expert evidence is a staple but where it is inevitable, at trial, under cross-examination, one or other of the opposing experts is going to be exposed as unconvincing. Knowing this already, even before they deliver their written report/opinion, experts giving witness evidence in civil litigation in England, are extremely cautious, in every word they write, for their very reputation, the basis of their exalted status, is at stake.
I recall that old story about the English, busy losing the Boer War and the reporter on site for the London Times sending back to London one gloomy report after another. Exasperated, his Editor sent him a cablegram which read “Send news of victories”. I wonder, does Mr Tilmann (consultant to Hogan Lovells, one of the world’s most prominent international litigation law firms) sometimes feel a bit like that reporter?
Readers, I heartily recommend the current issue of der Spiegel and its eyebrow-raising report on the activities of Philipp Amthor, in pursuance of his employment as Consultant to another large international law firm, White & Case, extremely well-embedded in government circles, notably in Brussels..
Did you expect anything else from a lobbyist like Mr Tilmann?
The term lobbyist is appropriate when you compare what Mr Tilmann has said in his article in GRUR 2020, 441, section VI.2.b) about the London Section of the central Division with the statement of the Ministry of Justice, Part B of the explanatory memorandum.
That the Minister of Justice has published a declaration shortly after the publication of the decision of the GFCC that the ratification will re-start during the present legislative period has certainly not been written by the Minister herself, but by her administration. The lobbyists in the BMJV have been active soon after the decision of the GFCC was not the one expected.
It is manifest that Mr Tilmann has held the hand of the civil servants in the ministry. In both documents it is stated, without any legal justification whatsoever that, once UK has left the UPCA, the London Section of the Central Division goes to Paris and it only later that different location might have to be designated. Me Véron, another lobbyist for the UPC, even went as far to claim that this is a gift from Brexit which should not be trumpeted around.
It is hard to believe that educated people can be politically naïve enough to come up with such a statement, given the difficult negotiations that preceded the splitting of the central division into three locations.
The UK has announced that it will not participate in the UPC, as it does not accept the supremacy of the CJEU, but it has not made any attempt to officially withdraw from the UPCA. As the UPCA does not have an exit clause, only the Vienna Convention on the Law of Treaties (VCLT) could be of application. It is debatable whether it could be Art 25(2) VCLT as suggested by Mr Tilmann or Art 31(3) VCLT as suggested by the Ministry.
In the case of Art 25(2) VCLT, the UPCA needs at least to be provisionally entered into force and the UK having send in a notification of withdrawal. By not participating and not sending a notice of withdrawal, the UK is in the comfortable position to blow up the UPCA. This would allow the UK to set up an improved litigation system in direct competition with the UPC.
In the case of Art 31(3) VCLT, it requires a political declaration of the remaining member states. When seeing how eager Italy was to receive the Life Science Section of the Central Division either in Milan or Torino, it is doubtful that such a declaration will be given.
On the other hand, as has been noted by Concerned Observer in a previous post, Art 56(2) VCLT provides that the UK will remain a member state to the UPCA for 12 months after its withdrawal. Why should Art 25(2) VCLT prevail? This is the private opinion of a private person, and even the document of the Ministry of Justice makes no reference to Art 2582) VCLT! One wonders why. The explanatory note mentions Art 31(3) VCLT.
Whatever Mr Tilmann claims and the lawyers in the Ministry of Justice say, unless the status of the London section of the Central Division is clarified upfront, i.e. that Art 7(2) UPCA is amended, it appears foolish for Germany to ratify the UPC.
It is surprising that in the draft bill of ratification and the explanatory memorandum , there is not one word about a further possible constitutional challenge of the ratification, cf. Point 166 of the decision of the GFCC. It is thus not correct for Mr Tilmann to claim that “the explanatory memorandum of the ratifying law expressly contradicts such an assumption.”
In view of the decision of the GFCC about the purchase of bonds by the ECB, it is in any case quite daring to come to this conclusion, whether one agrees or not with the decision of the GFCC. Justice Huber has made his position clear in an interview to the Frankfurter Allgemeine Zeitung. Simply ignoring such a question or belittling it like Mr Tilman does, shows once more who is interested in the UPC coming whatever it takes.
When Mr Tilmann speaks of the “patent owners worldwide” he is clearly saying who will be the beneficiaries of the UPC. 70% of European patent owners sit outside the EU. Offering them a single platform to attack European firms or European patent owners is something which will have dear consequences for Europe, but will allow Tilmann and consorts to fill their pockets. And this is the only interest they have in the whole UPC business.
When taking into account that the average number of validations of patents in EU member states, the UPC is as needed as a hole in the head. Only some very limited industries validate in a lot of EU member states, and even less validate in all EU member states. But those are figures which are superbly ignored by Mr Tilmann and consorts.
Why is it that countries like Poland and the Czech Republic refuse to ratify the UPCA? If the UPC is as wonderful as claimed by Mr Tilmann, they should be jumping at it. And yet, it is after careful evaluation of the risk for their industry, they decided not to go further with the UPC.
When Mr Tilmann claims that “The SMEs belong to the beneficial owners of the new system” it is just laughable and distorting reality. European SME are simply frightened to be attacked by multinational corporations, as they cannot resist the financial pressure which goes with it.
From the 10% of patents granted by the EPO to SMEs within the EU how many do validate in more than 3 states? Alone the fee for a nullity action is nearly double to the fee for infringement. It is thus very clear who should be the prime beneficiaries of the UPC. Certainly not SMEs.
I invite Mr Tilmann to read the article of Mr. Dimitris Xenos, “The Impact of the European Patent System on SMEs and National States and the Advent of Unitary Patent”, published in Prometheus, Vol. 36, No. 1 (März 2020), S. 51-68. The conclusions are very clear to any people genuinely looking at the number of applications from SMEs and granted to SMEs: the UPC is not for them.
It is not the ridiculous document of the EPO showing 12(!) case of allegedly successful SMEs with European Patents which will alter the conclusions drawn by Mr Xenos.
Techrights and zoobab: FINGERS OFF!!!
Max – there are other instances where the choice of words is extremely revealing. For example:
Q1: Is it normal in Germany not to publish the names of the organizations and associations that are being consulted?
A1: Yes
Interpretation: It is “normal” when one wishes to seek feedback only from a group of hand-picked organisations.
Q2: What kind of feedback can be expected?
A2: It is expected that the feedback will be overwhelmingly positive.
Interpretation: We know the feedback will be overwhelmingly positive because we have only sought feedback from those who we know have a positive view.
Whilst these are indeed trivial examples, they reveal a brazen and shameless attitude that demonstrates no concern for democratic legitimacy.
In another forum, I made some comments on this subject. Feedback has encouraged me to post them here. Slightly edited, I deliver them below:
The system of patent litigation that we have today is not broken and does not need fixing.
At the moment, every prospective litigant, from individual inventor, through SME, to large corporation, can find in the present system the litigation “tool” that suits his business need. Both England and Germany have in place the procedural devices that keep things simple and efficient, drive down legal costs, and so allow Little Daniel to take on Giant Goliath in the courts, on equal terms, and win. Such “streamlined proceedings” are anathema to the biggest and highest-powered, lawyered-up litigation shops, not at all what the proponents of the UPC like. What is positively good in the present system is, for them, what’s so wrong with the system we have today..
You only have to read the US patent law blogs to see how quickly and a patent litigation regime can deteriorate, if the wrong levers of power are pulled and pushed. As of now, we have in Europe very healthy competition between the courts of DE, GB, NL. I should hate to see that replaced by a system where the competition for business is, instead, between the international law firms. It was a disaster for the accountancy profession, and the same disaster should not be visited upon the patent and patent litigation professionals. Robin Jacob used to joke that “We can learn a lot from the Americans: Watch what they do, and then make sure not to make the same mistake.” I’m thinking of the law of eligibility/patentability in the USA, and what a grotesque mess has been caused by the ping-pong between the Court of Appeals and the Supreme Court, which mess is totally destructive to innovation. Ask Paul Cole, who writes Amicus Curiae briefs to the US Supreme Court on behalf of CIPA. Let us try NOT accidentally to give birth to a shambles of equal magnitude, here in Europe.
The number of cases where a cause is litigated in Europe over multiple jurisdictions is very small, both absolutely and relatively. In the national courts of those Member States where patent litigation is routine, there are a great many cases, with claimants of all different sizes. Little Daniel choose the jurisdiction that fits best, procedurally, with his business needs. Giant Goliath chooses the jurisdiction that will best squeeze his (very likely equally big) competitor into negotiating a settlement. The present system is no impediment, either to the Global Titans of this world or to the SME’s. It is a myth spread by interests hostile to Europe that it acts as an impediment to innovation and efficiency in Europe. If there is sluggishness in innovation in Europe (and there is indeed) the cure lies not with scrapping a functional system of patent litigation but, rather, with stimulus to investors contemplating putting money into technical innovation.
Indeed, the present rivalry between the jurisdictions within the EU, the pan-European role of the “GBK” and the never-ending criticism of the procedural peculiarities in individual jurisdictions, has a disinfectant effect and keeps the judges everywhere “honest”. This “honesty” is precious and fragile. Don’t tinker with the system, don’t screw it up, because the loss of this honesty outweighs any good that could come out of the UPCA as presently constituted.
I suspect that the political circles keen on the UPCA want it as a “victory” to decorate their record as “warriors for innovation”. If so, they are gullible, useful idiots, and self-delusional.
PREBO
I wonder why Germany, in its decision to ratify UPCA, is not taking the following facts into consideration:
1. The very initial and substantial aim of UPCA was to ensure EU-wide patent protection affordable also – or rather primarily – to SMEs; however, this objective has been completely ignored, and Stjerna is absolutely correct in pointing to this fact. A small additional illustration how non-friendly is UPCA is the fact that UPCA maintenance fees are the sum of “Top 4” filing EU countries – an amount that most of SMEs could not afford (a more SMEs-friendly alternative that the average amount of national fees of participating parties ought to determine UPCA fees was suggested by Pretnar in GRUR Int 12/2018, where a different approach towards true EU unitary patent is suggested as well).
2. EU legislation against patent trolling practices is non-existent, what eventually is going to facilitate big (EU?) companies to get rid off SMEs on EU market when UPCA enters into force.
3. At least Spain, Poland and Czech Republic (population of these 3 countries more than 86mio EU citizens) shall not be UPCA Member States; clearly, UPCA in its current form shall not be a true unitary EU patent even if it enters into force through accession of Germany.
To conclude, as a citizen of a small EU country, I would be happy if Germany in its forthcoming EU presidency would launch a new initiative for a new EU unitary patent system.
Dear Max Drei,
Thanks for your comment, which shows from another angle how unnecessary the whole UPC business is.
I have a few things to add.
The EU has lived for more than half a century without a centralised court for patent matters. Has it come out maimed and in dear need of such a complicated construct like the UPC? By no means!
There is no possibility to divide the EU with the help of patents as the CJEU has a long time ago decided upon the exhaustion of patents rights. Why is it then necessary to try to block patents in every possible member state of the EU-UPCA? This is the more so since the number of validations in a plurality of EU member states is very low.
As perfectly explained by Max Drei, the number of true transnational litigations over Europe is extremely limited. And companies wanting to litigate in a lot of member states can certainly afford the corresponding costs. At a glance I can quote two: pemetrexed disodium and Epilady/Improver. Both patents are or were held by big multinational corporations with deep enough pockets to afford the costs. Why bother the European industry and especially SMEs with such a monster like the UPC?
The UPC is only necessary for those wanting to fill their already deep pockets and those people are ready to come up with anything which can lure politicians in such a trap as the UPC.
The regular meeting between judges dealing with patents in the EPO member states have done more to harmonisation of the interpretation of the EPC throughout Europe than the UPC might ever do, and that only for part of the EU. The extra layer of case law the UPC will bring, will not help to clarify the situation. It will just complicate matters.
Contrary to what Mr Jacob has said, the UPC will not be the leading court in Europe which will be followed by all other courts, and the number of oppositions at the EPO will not diminish, be it only for the fact that the fee is many orders of magnitude than that of a nullity action before the UPC. And in the EPO, every party bears its own costs and simultaneous interpretation is for free.
If something should be done is to extend the period for opposition to the whole life of the patent. But then qualified representatives and not just lawyers can act. And that is not what lawyers pushing the EPC want, so they need a fig leaf, SMEs, to pretend that the UPC is needed.
One should not forget that lawyers first wanted to have exclusive representation rights before the UPC. It is only due to the protestation of qualified representatives that the latter can act before the UPC provided they have acquired a litigator’s certificate, cf. Art 48(2) UPCA.
Just an example to show how the drafters of the Rules of Procedure have tried to squeeze out qualified representatives from the UPC:
According to Art 48(4) UPCA representatives of the parties may be assisted by “patent attorneys”, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.
According to R 292(3) UPCA the “patent attorneys” shall be allowed to speak at hearings of the Court
– at the discretion of the Court and
– subject to the representative’s responsibility to coordinate the presentation of a party’s case.
In other words, they may at best have a position similar to that of accompanying persons in the meaning of G 4/95, i.e. they have no procedural right to speak before the UPC.
If it was the intention of the legislator to also allow representatives under Art 134 EPC, under conditions, to address the UPC, this intention is counteracted by the Rules of Procedure concocted by a select group of lawyers having co-opted each other.
I even have heard at one of the UPC Conference organised at the EPO, Mr Hoying expressing its reservations about technical judges. In his opinion, they are not needed. Mr Hoying is one of the members of said select group of lawyers…… That technical judges might not be impressed by the rhetoric capabilities of lawyers might be an explanation for his position.
Techrights and zoobab: FINGERS OFF!!!
Good stuff from Attentive. Anybody who has had a career as a patent attorney knows well that in patent litigation the hard part (hard = legal costs) is in the area of validity. Is the disclosure “enabling”? Is the “invention2 the “same” one as in the priority filing? Is the claimed subject matter “obvious” to the person of ordinary skill in the art?
In comparison, deciding whether any given act infringes the claim, or what shall be the relief from infringement, is child’s play. Even lawyers can do that entry level stuff.
Now, you well-meaning politicians, bent on throwing the baby out with the bath-water, listen up, please.
Over the last 40 years, the hard work, the heavy lifting, to develop a pan-European law of patent validity, has been the patent attorneys and the EPO Boards of Appeal. The result is a body of case law set out in The White Book published by the EPO. To quote Robin Jacob again, it is this book that enjoys pride of place on his desk as patents judge.
But it is a red rag to the attorneys at law in the world-bestriding big litigation shops. Having been more or less bystanders in the matter of patent validity for 40 years is increasingly infuriating to them. They are increasingly minded to “correct” the situation and appropriate the lucrative work for themselves, whereupon (dear politicians) the number of billable hours per patent case will go through the roof.
OK, patent attorney firms also know how to bill (patent) attorney hours. But what they bill for is the irreducible minimum of hours to win the argument, that argument being overwhelmingly technology-based. Look to the USA if you don’t believe me, to see how patent litigation is conducted, with thousands upon thousands of attorney hours billed, with very little of it concerning issues of technology. Judges don’t understand the technical issues crucial to validity so decide cases on issues of equity (which litigating party has the white hat and which is the Black Hat). This is NOT a good look and not the way patent litigation in Europe should be encouraged to follow.
As I say, again and again, echoing Joni Mitchell, you don’t realise what you’ve got, how precious it is, till its gone.
I would like to draw the attention of the readers to the publication today in Lexology of an Article of Mr Bolko Ehlgen from Linklaters LLP:
German UPC Ratification 2.0 – Can the quick fix be the solution?
https://www.lexology.com/library/detail.aspx?g=e0405ff9-a129-4971-bbfe-3fbd56222652
The nub of the comment lies in the following:
“The idea of the draft is to bring the UPC into force now despite the UK‘s decision not to participate and to settle the follow-up questions later. The ‚no’ from London obviously changes some of the fundamental assumptions of the UK, at a far deeper level than the question of where to relocate the part of the central division that was planned for London. These changes need to be discussed by all remaining UPC members and not cut short by the German ratification. Interestingly, the draft specifically mentions that the central division cannot stay in London if the UK does not participate; Paris and Munich will take over London‘s role in the interim. One cannot exclude that a quick ratification could be used to keep some more competencies with the Munich division, as this may be the status quo when members begin to debate who else should host a central division – potentially an important shift in bargaining position.
The other element that raises some question marks is whether this ratification is really constitutionally bullet-proof. The court dismissed the remaining substantive challenges, but ‚only‘ as inadmissible because they were not properly substantiated. Some interpret parts of the judgement almost as an invitation to follow up on these points in case of a further ratification attempt. They may get a chance to test their luck before the court soon. The real question will then probably not be whether such a challenge succeeds but whether the court would stop the ratification process again. It is hard to imagine the UPC surviving another three years of impasse.
Lastly, one should not count out the Parliament in this one. In 2017, the ratification act was passed without a handful of members in attendance. Not necessarily a sign of disinterest but rather of consensus. With constitutional questions looming and a changed landscape of participants, it may not be so easy the next time around. Parlamentarians may wish to use this for a real debate on the project with an open outcome or a call for a clear proposal on how to deal with the UK‘s absence. Crisis is often called the time of the executive branch. With Corona-related restrictions lifting, we are currently seeing a revitalisation of legislative activity and wish for oversight of executive action that may not stop with the reactions to the pandemic but also engulf the UPC ratification”
In other words, even a lawyer from an international litigation firm, who could eventually benefit from the UPC, emits very strong doubts about the way the German Ministry of Justice (BMJV) wants to push the ratification through.
May be somebody could draw the attention of the Minister to this article, so she can realise what her administration is concocting behind her back.
But for Mr Tilmann and his friends in the BMJV all is OK!
Blessed are the simple-minded, for they shall see the kingdom of heaven…
“I’m thinking of the law of eligibility/patentability in the USA, and what a grotesque mess has been caused by the ping-pong between the Court of Appeals and the Supreme Court, which mess is totally destructive to innovation. Ask Paul Cole, who writes Amicus Curiae briefs to the US Supreme Court on behalf of CIPA. Let us try NOT accidentally to give birth to a shambles of equal magnitude, here in Europe.”
SCOTUS just corrected those deviant patent courts, 15 times over the last 15 years.
The patent industry pretext SCOTUS jurisprudence is ‘inconsistent’, others will say CAFC is deviant and dangerous for society.
Patent law does not live in its own bubble.