The Unitary Patent system can start in the near future. That is one of the conclusions of a meeting held yesterday by the Preparatory Committee of the Unified Patent Court.
According to a press release, on the agenda were “issues triggered by the recent events in Germany and the United Kingdom. The Committee took note of the good progress being made in Germany with regard to the legislation needed for the German ratification of the Unified Patent Court Agreement and the Protocol on Provisional Application.
The Committee also took note of the call from European Industry for a swift entry into operation of the Unitary Patent System. Against this backdrop issues concerning the effects of the UK withdrawal were discussed as well as appropriate ways forward. Good progress was made and the Committee is confident that pragmatic and legally sound solutions will be found that will enable the unitary patent system to be functional in a near future.”
The meeting, the first since March 2017, was 100% digital due to the corona pandemic and travel restrictions. According to the Preparatory Committee, it set “a good precedent for the future working of the UPC as a digital court”.
Last July, the UK withdrew its ratification of the Unified Patent Court Agreement as a consequence of the Brexit. The secretariat of the European Council has since updated the list with UPCA ratifications and the list with signatories of the Protocol to the Agreement on a Unified Patent Court on provisional application (PPA)
Germany however wants to proceed with the project. Its government presented a new draft bill for ratification of the UPCA in June, just months after the German Constitutional Court had declared void the first ratification procedure because the UPCA ratification bill hadn’t been approved by a two-thirds majority. Minister of Justice and Consumer Protection, Christine Lambrecht stated she wanted to continue working to ensure “we can provide the European innovative industry with a Unitary Patent and a Unified Patent Court”, despite broad criticism of uncertainties concerning the UP system.
Some observers think the German ratification procedure may be completed as soon as this year. Interesting, in this respect, is a report of the Italian Ministry of Foreign Affairs, elaborating on the redistribution of the competence of the London branch of the central division of the UPCA. According to the report, the Preparatory Committee “confirmed the willingness of the participating States to ensure the entry into force of the UPC as soon as the ratification process is completed, and hopefully already in early 2021.
In order to allow this, it approved a provisional redistribution of the competence of the London office between the existing offices in Paris and Munich, provided, however, that this is a short-term solution, pending the entry into force of the Agreement and that Italy can start, in agreement with the other signatory States, the procedure for amending the Agreement to include Milan as the third seat of the central Court division.”
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Errr… are we not ignoring rather insurmountable problems with the “Entry into force” provisions of the Protocols, such as Article 3(1) of the PAP:
This Protocol shall enter into force the day after 13 Signatory States of the Agreement on a Unified Patent Court including Germany, France and the UNITED KINGDOM, have either ratified, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court and have
a. signed in accordance with Article 2(2)a. or signed, and ratified, accepted or approved this Protocol in accordance with Article 2(2)b.; or
b. declared by means of a unilateral declaration or in any other manner that they consider themselves bound by the provisional application of the articles of the Unified Patent Court Agreement mentioned under Article 1 of this Protocol.
The UK is still a “Negotiating State” in the sense of Article 1(e) of the VCLT. The UK has not given its agreement for the international treaties whose texts it took part in drawing up and adopting (the UPCA and the two associated protocols) to enter into force. Thus, in addition to entry into force now being contrary to a literal reading of the relevant provisions of the Agreement and Protocols, there would appear to be no basis for entry into force under Article 24 VCLT.
It seems that the UK is not alone in being prepared to break international law!
In the Italian announcement “Announcement of Milan candidacy to the seat of the UPC”:
https://www.esteri.it/mae/en/sala_stampa/archivionotizie/comunicati/annuncio-della-candidatura-di-milano-a-sede-del-tub.html
“it [the Preparatory Committee] approved a provisional redistribution of the competence of the London office between the existing offices in Paris and Munich”
The Preparatory Committee does not have the competence to distribute tasks from London to Paris+Munich.
This is not legal.
And Italians are being screwed, as a promise to have the seat in Milan after the UPC enters into force is not legally binding.
The approach is also narrow-minded. The Court is not something just to be divided up for political favours. That happened with Cameron in 2013 but only because there was no other way and look where that got us. The UPC needs amending (should have been amended 4 years ago) to recognise the Central Division as having a single seat (with freedom to delegate workload as required to local divisions) and remove the ridiculous Annex II.
It should also reflect the post Covid reality that we hope to see – time for the first true CyberCourt.
Thank you Concerned Observer, my thoughts were also: Why make a fuss about the “Internal Market Bill” and then go on and break international law…?!?
If – with the existing agreements – the UPC is started, it will be fun to see the first case tried in Milan go to the EuCJ because of the wrong venue (this gives a new meaning to “forum non conveniens” 😉 ). But I don’t see a start of the UPC soon, the BVerfG mor or less invited new constitutional complaints, so I guess it will take some more years to resolve the open questions, assuming this is at all possible.
With the mess made out of the UPC agreement, it would be best to completely scrap it and start from scratch – without interested litigators during the drafting.
The post from “Astonished” puts its finger on the problem: who today shall draft new legislation, if not the powerful lobby interests (here, the international patent litigation industry)? The days are long gone, when draft legislation was written by a public office (such as, in the UK, the “Parliamentary Draftsman”) with provisions carefully crafted to coincide with “the public interest” or the “general welfare” of society. Today, nobody knows any longer what that is (or if they do, the lobbyists immediately render it invisible).
A lot has already, correctly, been said by earlier commenters, but I would like to add some thoughts going in the same direction.
That the preparatory committee is positive about the future of the EPC cannot come as a surprise. If this committee does not believe in the UPCA, who should?
Questions remain. One of them being: is a “note verbale” enough to withdraw from a treaty? I have strong doubts. The absence of an exit clause in the UPCA makes the Vienna Convention on the Law of Treaties applicable and I concur with Concerned Observer. Art 24 VCLT does not appear applicable.
Neither the Italian declaration nor the preparatory committee make any reference to this treaty. In the presentation of the new ratification bill there is a mention of a common declaration under Art 31(3) VCLT, but it is difficult to consider the declaration of the IT Minister of Foreign affairs to be such a declaration.
An interesting question is also, should such a declaration under Art 31(3) VCLT also be endorsed by the countries having signed but not yet ratified? I would be inclined to say yes, since should they ratify later, they might be put in a situation they could neither envisage nor control.
Are we living in a world free of rules or regulations, where lobbyists can push their desires into reality? I just hope not, as otherwise we would live in the jungle and not in a civilised word.
Without amending Art 7(2) UPCA beforehand, the UPCA will end up in mess. The compromise à la EU when deciding to split the “Central” Division now backfires, and rightly so. The whole idea of splitting was crazy and corresponded to a lousy compromise à la EU.
If the question of Art 7(2) UPCA is not settled beforehand, it will remain as a Damocles sword over the future of the UPC. At least in Germany, there is the notion of an “appointed” judge. A party cannot influence the designation of the judge dealing with its case. There is a clear set of rules on the designation of any judge in any affair.
That now a different judge can be designated by way of an administrative action does not seem to correspond to this fundamental idea which is part of the set of rules which guarantee the independency of the judiciary over the executive.
Any party losing before the transferred section of the Central division will not accept it, and will find any way possible to have this, avoidable, situation being scrutinised, for instance before the CJEU or even a national court like the German Federal Constitutional Court.
One does not need to wait until a Milan Section delivers a decision to go to the CJEU. The problem applies also if the duties of the London Section are transferred “provisionally” to Paris and/or Munich.
Some of the constitutional problems linked with the supremacy of the UPCA over the German Constitution have not been resolved, and even worse, they have been completely ignored in the presentation of the new ratification bill.
Last but not least, the present coalition does not have on its own a 2/3 majority in the Parliament, so that the ratification is not yet acquired for this reason alone.
One thing is now clear, there is no mention whatsoever of the beneficial effect of the UPC for European SMEs. This farce has now been ended. Why bother if the goal is almost achieved!
I fully agree that all the interested litigators having co-opted each other in the drafting committee of the RoP should be excluded from any further drafting committees linked with a reviewed UPCA.
I have heard from very reliable sources that some national judges are complaining and are totting up all the money they miss by the delayed entry into force of the UPCA. This is also something not nice to hear, and those judges having been co-opted in this famous drafting committee should also be excluded.
Sorry folks the end does not justify the means. The rule of law should be respected by judges and lawyers alike.
I have just found an interesting piece of news published in IP Copy. It stems from the well-known firm Keltie.
https://ipcopy.wordpress.com/2020/09/08/so-long-and-thanks-for-all-the-fish-the-uk-withdraws-from-the-unitary-patent-court-project/
It blows into the same horn as other well-known firms, which even have written their reservations to the German Ministry of Justice.
I also invite the readers of this blog to consult the latest paper of Mr Tilmann in GRUR Int. 08/20, 847.
He insists upon his point that the work devolved to the London Section should go automatically to Paris. This time without even the sketch of a legal solution.
In this paper he also mentions that UK has always been a difficult partner in Europe when it comes to patent matters. He considers that the UK industry and legal profession has a lot to loose from not participating in the UPCA.
He rejects any possibility for a judicial forum for patent matters under the cover of the CJEU, although when it comes to a unitary patent for the EU this should be the first option. He knows too well that the required unanimity will never be reached.
Why then insist upon a system which is simply adding a further layer of case law on the existing situation? We will still have UK case law, and the corresponding costs, as well as that of the EU members not participating in the UPCA, on top of that of the UPC.
That the USA and China have decentralised courts for IP matters is not a reason to do the same in Europe. The danger of forum shopping is real with the UPCA. And in view of the higher number of patents of non-European proprietors, offering the latter a single point of attack is a consequence which is showed under the carpet. What matters is earning a lot!
According a post from Bristows dated 11.09.2020, the new ratification bill will enter the Bundesrat (second chamber of the German Parliament) on 18.09.2020.
https://www.bristowsupc.com/latest-news/upc-preparatory-committee-meets-and-german-bill-progresses/
Lobbyists are very active these days.
From the IPCopy article:
“The UPC Agreement does not have any withdrawal provisions but the Vienna Convention on the Law of Treaties does provide mechanisms for withdrawal from treaties with no withdrawal provisions. Whether the UK’s withdrawal is currently effective may be unclear however and may require amendment of the Protocol to the Agreement on the UPC on provisional application.”
Which article of the VCLT do they refer to?