Kluwer Patent Blog

27 comments

1. Bravo, Thorsten. Let’s not lose sight of the attitude of the BREXIT-supporting part of the British newspaper press, in relation to judicial scrutiny of PM Johnson’s efforts to shut out scrutiny by the sovereign Westminster Parliament. On the front page of the D**** M*** , the judges of the UK Supreme Court were called out as the “Enemies of the People”. Is this what the proponents of the UPCA are urging too? I do hope not but it does seem so. Invoking the will of “the people” is always a warning sign.

   1. Indeed.

      “Will of the people” is a phrase used when those in power find “Rule of Law” inconvenient, and cannot be bothered to change the law correctly using the legislative tools at their disposal.

      [NB – by “legislative tools” I am not casting aspersions on our democratic representatives, nor implying that many of them seem to exhibit little in the way of free will].

      Yes it is exciting to do things quickly, and boring to do things correctly, but I for one would welcome a correctly boring government in my country.

2. Mr. Bausch, thank you for your commentary!

   When I read the Juve-Patent commentary, I was surprised that now democracy will be damaged, if the BVerfG does not throw out the complaints quickly.
   IMHO, the only way the BVerfG could damage democracy is, if it does not deliberate (and decide) thoroughly – after all, there are enough open questions (some of them named or hinted on in the first decision).
   Of course, as you said, today is a good day to celebrate democracy, and I hope from now on it happens less often, that presidents (or others) say a court has “no wisdom, no courage” or it would “damage democracy” just because it decides not as (speedy as) they wish.
   Interestingly enough, right now the article is no longer visible on Juve-Patent, but it still can be found using the search function…

3. Well said Thorsten.

   I would like to add that there could be an ethical dimension to this saga.

   The UPC’s strongest supporters (who undoubtedly include lawyers amongst their ranks) have started to wheel out arguments that, at best, can be described as very one-sided. This brings to mind what happened with the previous complaint. As I recall, the UPC’s supporters argued long and hard that the earlier complaint should be (immediately) dismissed. Also, on numerous occasions, they (confidently) predicted that this is precisely what would happen.

   Sadly, the fact that UPC’s ardent supporters clearly got things very wrong on the first occasion does not appear to have prompted them to adopt a more neutral, balanced and open-minded approach on this occasion. For example, basing arguments upon (highly opinionated!) hearsay really is taking things too far. (This is setting aside the fact that the quoted “sources” cannot possibly know anything about the content of the complaint unless they have been received information either from the complainants – which seems highly improbable – or from the FCC, which absolutely should not happen.)

   Moreover, it does not matter if there is nothing “new” in the two complaints. This is because, as I pointed out in the previous thread, the ground discussed in paragraph 166 of the FCC’s earlier ruling could, on this occasion, PERMANENTLY prevent Germany from ratifying the UPC Agreement. The only surprise here is that this issue was not taken more seriously when the new law was drafted (and then passed by Germany’s legislative chambers).

   Which all brings me back to the ethical dimension.

   Lawyers have an obligation to act in the best interests of their clients, and to provide them with impartial advice. It seems to me that a lawyer meeting these obligations might well conclude that, on balance, those questioning the constitutionality of the UPC (and/or its validity under international law) have reasonable, potentially even winning arguments. Such a lawyer would certainly also acknowledge that, even if the UPC does see the light of day, there is a chance that it is underpinned by laws that contain inherent (and potentially fatal) flaws … thereby making it a system that, at least in the short to medium term, might be best avoided by the holders of particularly valuable patents.

   On the other hand, it is of course difficult to satisfy the ethical and professional obligations to one’s client if one is unwilling to assess the legal situation from a sufficiently neutral standpoint (or even, it seems, to acknowledge reality).

4. I think one of the main problems is the lack of transparency.

   The UPCA has gone through the legislative instances of parliament and council (Bundesrat), but now the president is holding off signing it into effect to enable Germany to ratify. That’s understandable if there are genuine concerns from the FCC.

   The difficulty is that only a rarified circle knows what those concerns are. As it says in the article “No-one other than the complainants, the court and the other constitutional bodies have yet seen the complaints”.

   The will of the people, expressed by legislation having been passed by the elected Parliament and the council, is being prevented from coming in to effect for unknown reasons.

   Both democracy and the rule of law rely on the citizens having confidence in the respective branches executing their functions with propriety. Its impossible to have that confidence when something is done by way of a gentleman’s agreement behind closed doors (call from the FCC to the president). Such an opaque system is clearly open to abuse.

   As the saying goes, justice does not just need to be done, it needs to be seen to be done.

   It would be much better if the complaints, and the FCC’s (provisional) concerns, were made public. Then all could see that the will of the legislator has not just been stopped arbitrarily.

   I generally question the secrecy that surrounds proceedings in the German courts, especially proceedings in the FCC. It contrasts markedly to other countries.

   For avoidance of doubt, I think the likelihood that the FCC or the President is being capricious or nefarious in this instance is tiny. My concern is with the process. And as we’ve seen elsewhere, poor processes can be exploited by the ruthless.

   And as a final point, I think we here in Germany have become a bit arrogant in considering our systems better than elsewhere, and have become too un-critical of ourselves. For all that works well (and there is lots), we are also the land of Dieselgate (have we got to the bottom of it? Have the car companies been called to order?) , Wirecard (look how the regulator pointed the finger at the foreign papers etc who were airing suspicions, rather than investigating Wirecard thoroughly), Loveparade (process timed out), world cup 2006 (did any investigation happen here?), Oury Jalloh (that should send shivers down everyone’s spine), child abuse in religious institutions (contrast with how thoroughly these have been investigated in eg Ireland, Australia, USA).

   Sometimes I feel we just want to brush everything unpleasant, or embarrassing to those in high places, under the carpet.

   1. Well said indeed. I am a Brit living in Munich and, thanks to BREXIT now have dual nationality. I am fiercely defensive of Germany’s admirable Grundgesetz (written Constitution). Yes, here in Germany, a tendency to arrogance is still evident, an unfortunate tendency to defer to people in proportion to the number of doctor titles they enjoy, and a tendency to shut one eye when difficult issues arise, but nothing that a greater effort towards transparency can’t cure. It reminds me of words from my old school reports “Not bad, but could do better”. The USA is no longer the self-designated Shining City on the Hill, but perhaps Germany, despite all, can aspire to be that role model? Why not?

   2. I am glad that you are concerned about the need for justice to be seen to be done. However, I think that you are picking on a target that is very low down the list of priorities. Given that it (potentially) affects all European patents, I would have thought that a more pressing issue would be grounds for concern regarding the lack of independence (according to the “objective” standard) of members of the Boards of Appeal of the EPO:
      https://patentblog.kluweriplaw.com/2020/11/03/a-few-thoughts-on-trust-and-judicial-independence/

      Without any objective evidence that the FCC and the Bundespräsident are abusing their powers, I think that it is fair to categorize your concerns as pointing out issues that, in an ideal world, would be addressed. However, there are other areas of the law in Europe where there is already ample evidence of breaches of the rule of law (and/or separation of powers). I would suggest that you turn your attention to those as a first order of business.

      1. Hi Concerned,

         This article is about events and procedure in Germany. Which is why I’ve commented on procedure in Germany. I’m not sure why you’re trying to shoehorn the EPO into it. I agree there are things at the EPO that can be improved. But I don’t see why that should stop me commenting on things that can be improved in Germany, particularly in comments underneath an article about, yes, Germany. By the same logic as yours, one could ask why are you bothered about matters at the EPO, which only concerns patents, compared eg to the rule of law in Poland? And if you commented negatively on the state of the rule of law in Poland, one could say, why are you bothered about that, compared to eg the rule of law in Russia? We should look for improvements everywhere. As I said in my comment, I feel we in Germany have become too arrogant and uncritical about our own systems.

         1. The question is: why, out of all the current issues giving rise to concern with regard to the rule of law, would you select for criticism the peculiarities of the FCC’s modus operandi?

            Others here have explained the context in which the FCC’s request sits, as well as the rather tame limits to any possible grounds for concern. Also, there is a reasonable chance that pro-UPC lobbyists are behind attempts to stir up controversy in connection with the FCC’s request. So why allow yourself to get drawn in?

5. Dear Thorsten,

   Thanks for your clear and balanced message.

   I can agree that the Parliament has now voted with the required quorum in favour of the UPC. But when you see the information given in the explanatory note before the second vote, I wonder if the MPs and the members of the Bundesrat have cast their vote knowing what they were voting for.

   The explanatory note was manifestly written by active pro-UPC lobbyists as the same considerations were published by a famous one of those a few weeks before in GRUR Int.

   All the potential problems have at best been belittled, cf. the question of Art 7(2) UPCA, or completely ignored, cf. Point 106 in the earlier decision about the supremacy of EU law over the German constitution.

   I would rather see the insult to democracy there and not in fact that the GFCC has for the second time asked the President of the Republic not to sign immediately. If I were a member of the GFCC I would not be pleased to see how an important question brought in by the court in is first decision has simply been ignored. One might agree or not with the position taken by the GFCC in matters of supremacy of law, but simply ignoring it is nearing contempt of the court.

   I fail to understand why a publication like JUVE drifts into such an outrageous attitude. “The will of the people [certainly] comes first”, but it should be the enlightened will of the people, and not a will misled by lobbyists interested primarily in filling their already deep pockets and not interested whatsoever in what is really needed by the people they pretend to serve.

   Without a proper solution to Art 7(2) UPCA it is vain wanting to open the UPC. Any decision of its central division taken in matters of life science would be prima facie illegal as this matter should have been dealt with in London and neither in Paris or Munich. See the Annex to the UPC.

   With the first complaint against the ratification of the UPC how often have heard that the complaint will be dismissed rather yesterday than to tomorrow, and that the complaint was without merit.

   In view of the experienced gained, the mere fact that now for the second time the GFCC has asked the president not sign the bill, means rather to me that there are still very important problems. Common sense leads me to this conclusion rather than information about the complaints.

   There is also a long standing problem which has to be tackled by the GFCC: the question of the independence of the boards of appeal of the EPO. This is in my opinion now becoming urgent as in the meantime we have seen some “dynamic interpretation” coming into play so as to please the head of the EPO or its AC.

6. “contain hardly any new aspects”

   Brexit maybe?

7. The UPC is a mess and is a dead law walking, even if the FCC will say ok.

   The only advantage of the UPC in my opinion is that it could harmonize patent enforcement in the contracting states.

   The same advantage could be achieved with a EU patent enforcement directive, which specifies in greater detail the aspects of the IP enforcement directive related to patent law.

   1. Reliance on a EU patent enforcement directive would fail to achieve suitable harmonisation of the jurisprudence. A key advantage of a UPC would be that it would be competent for validity and enforcement and related matters. Decisions would then be based on a broader scope of inputs. Look at the FRAND and essentiality cases, or at the SPC cases. There is quite a range of issues (validity, scope of claims, contract, competition, regulatoryy) and it would be desirable if a single court could handle all of them.

      1. The current unitary patent package might be appealing from this perspective but it is not the only solution to the problem (indeed, from the perspective of the rule of law, it is by far the worst of the available options). See my first comment from 15 January on the earlier thread:
         https://patentblog.kluweriplaw.com/2021/01/13/german-ratification-of-unified-patent-court-agreement-put-on-hold/

         Also, I should point out that there is already a single court that is responsible for “harmonising” SPC law … namely the Court of Justice of the EU.

         When it comes to SPC law, the CJEU is full of surprises. No single national court can claim a 100% success record when it comes to predicting how the CJEU might interpret the law. It therefore seems to me that greatly reducing the number of courts that regularly rule on SPC-related matters might, in the long run, be a bad thing. This is because it would reduce the opportunities for preliminary references in those areas in which multiple, reasonable interpretations are possible but there is no “settled” CJEU case law.

         1. The CJEU wants to open an IP specialized section, as all most important EU jurisdictions have.

            In this case, the CJEU problem (which was one of the reasons of the UPC) would be solved.

            The lobbyist should support the improvement of the CJEU, instead of the start of the UPC.

8. Is it not remarkable how people always invoke concepts like “transparency” and “the protection of democracy” when they have certain desires while lacking solid arguments supporting these? Their aims are then neatly put in a package with a potentially well-meaning label like “transparency” or “democracy” in order to get something which they are legally not entitled to. A very simplistic approach and very easy to see through.

   Can I remind you that, at least in Germany, there is no general concept of transparency. Under the German Freedom of Information Act for instance, citizens have a right to transparency as regards public authorities, in particular those from the executive branch. The legislative and the courts are almost exempt and they vigorously defend this situation. There is, in general, no right to transparency between private individuals.

   What people usually mean when they call for “transparency” in the UPC context is being allowed unlimited access to documents from legal proceedings to which they are not a party and to use them as they see fit. To me, this discussion is very much hypocritical and self-serving. Every day, the limited access to the court file in German proceedings is harshly defended by members of the German legal profession when it affects their own documents and they are usually not very much in favor of “transparency” when it comes to disclosing them to external parties. A little more reflection and honesty would be welcome.

   The same applies to democracy and the almost incredible declaration that “Ultimately, at a constitutional level, the will of the people still comes first”. This is not and has never been the case in any democracy following the rule of law. Not in general and, in particular, not “at a constitutional level”. Here, the law as applied by independent and neutral courts always takes precedence. For good reasons. The last time when the rule “the will of the people still comes first” applied in Germany, it did not end well for Europe and the rest of the world. I still cannot believe having to read this in a German press piece in the year 2021 and it is certainly a worrying sign. Advocating for something else than the primacy of the law as applied by the courts is not democratic, it is totalitarian in nature, in fact paving the way for abolishing democracy.

   1. Hi Gogorilla,

      You wrote “ Can I remind you that, at least in Germany, there is no general concept of transparency. Under the German Freedom of Information Act for instance, citizens have a right to transparency as regards public authorities, in particular those from the executive branch. The legislative and the courts are almost exempt and they vigorously defend this situation.”

      The question is, whether or not this is a good thing. I say it is not, and that the example of countries which have more open court proceedings is better. I think having legislation, passed by the parliament and council, set aside, without having a published court decision (final or interim) is problematic. The will of the legislature is being frustrated, without any way to know why. The rule of law of course allows the courts to decide that the legislature or the executive has acted beyond its powers, eg contrary to the constitution, but that of course requires a published, reasoned decision of the court. A secret phone call is plainly open to abuse. Your argument amounts merely to “this is how things are in Germany, so it must be good”. I’m asking us to consider whether this process really is good or not. I.e. to think beyond merely defending the status quo just because it is the status quo. And there is nothing hypocritical in my opinion because, as I said, I generally consider the secrecy of our courts to be problematic. In other words, I would reduce the secrecy across the board. Finally, I am not a supporter of the UPC in this form and don’t think Germany should ratify it. I’m simply commenting on the convention that has been followed to stop this international agreement being ratified. I’d make the same argument irrespective of which international agreement would have been passed by parliament and council, then stopped by a call from the FCC to the president.

      1. Wow, where do I start with this?!

         Why do you think it makes a difference whether you’re in favor of the UPC or not?

         You state: “I’m simply commenting on the convention that has been followed to stop this international agreement being ratified. I’d make the same argument irrespective of which international agreement would have been passed by parliament and council, then stopped by a call from the FCC to the president.”

         So this is the first time you ever came across this long-standing practice which is in operation since at least the FCC’s Lisbon decision in 2009? Would you bother informing yourself about the legal background of this construction and reassess your musings on this basis? Would you also mind checking the legal concepts behind “transparency” as applied in Germany today? Simply declaring “I would reduce the secrecy across the board” is not enough as several legal rights are involved on either side which need to be balanced against one another. Facts and solid arguments still matter and should not be allowed to be replaced by some naive babble without any material substance, guided by nothing more than a (possibly) well-meaning intent.

         You further state: “A secret phone call is plainly open to abuse.”

         What kind of abuse to you fear here? You mean the FCC conspiring (?) with the Federal President to do exactly what? Not to proceed with the procedure until the FCC had the time to read and digest the complaints, before deciding on how to proceed? Is this really an abuse? So you would prefer the FCC issuing an interim order barring the President from concluding the procedure, before they make their assessment? Is this really a better alternative? Again: Facts and arguments do matter.

      2. There can be no interim order, as the GFCC can only use interim orders against existing laws (§93d BVerfGG: “Anwendung des Gesetzes”).
         And this law has not yet been passed, as it still misses the signature of the German Federal President.

         IF the President signes, the GFCC could use an interim order against the executive (federal government) not to deposit the papers (i.e. a preliminary injunction against implementation of the law, §93d of the Bundesverfassungsgerichtsgesetz).
         This would be the full formal path.

         But right now, the law does not yet exist, so the GFCC has little it could base any interim order (preliminary injunction) on, §93d speaks of the application of the law.

9. While I am indeed a supporter of the UPC, as all the other commentators know, I do agree with Thorsten that we should celebrate democracy and respect the judges. It is unfortunate that there will be another delay, but it is a good thing that judges can be asked to check whether such a major development in patent law is acceptable under the rule of law of the participating countries.

10. A lawyer from Preu Bohlig & Partner residing in France is claiming on LinkedIn that “The German Federal Constitutional Court has asked the Federal Government and the Bundestag to comment on the new actions against the UPCA, until early January 2021[??]. These comments were sent last week. It is very likely that the GFCC will decide on the issue of an interim order against the enactment of the law allowing ratification in the next few time (2 or 3 weeks?)”. Where this person does have such information?

    On the other hand, the Committee on Legal Affairs and Consumer Protection recommends to intervene in the proceedings 2 BvR 2216/20 and 2 BvR 2217/20 before the German Federal Constitutional Court and to request the President to appoint a legal representative. See Drucksache 19/25829 dated 13.01.2021.

    This shows how far the MPs have been misled by the pro UPC lobbyists sitting in the German Ministry of Justice.
    That the AfD has voted against the UPC is not a surprise, as this party is against anything touching the EU, so we can forget their point of view. It is as reasoned as the approval by the other parties represented in the Parliament.

    If you tell the latter that more jobs can be created and your country will play a big role in Europe they will certainly be in favour. That the UPCA as it stands has lots drawbacks, could lead to a legal mess and is actually there for some people to fill their pockets has certainly not been told to the MPs.

    Any further news?

    1. “Where this person does have such information?”
       As you know, the interests of the German Ministry of Justice are closely intertwined with those of certain circles. Therefore it should not come as a surprise that the Ministry is keeping their friends in the loop about the applicable time limit, some of them – as usual – not being able to resist publicly pretending to be better informed than others.

       The part “It is very likely that the GFCC will decide …in the next few time” (??) looks like a combination of wishful thinking and braggadocio. Remember the first complaint and how many people claimed from the outset to have “sources close to the court”, “well-informed sources” etc. , shouting from the rooftop alleged “inside-information” on an almost weekly basis? How many times was a decision – a rejection, of course! – “imminent”, according to these people? What happened in reality? This is all smoke and mirrors, trying to keep alive their rapidly diminishing hope.I would take these statements with a large grain of salt or better ignore them altogether.

       The BVerfG appears to have taken home some conclusions from the first complaint. Have you noted that there is a deafening silence on the aspect that certain “professional associations” have not been given the opportunity to file a statement this time (at least up to now). Why do you think this is? Could it be that certain people, in addition to not having to contribute much of substance, have taken it too far last time by trying to mislead the court and this is the backlash? Who knows, but seeing how this played out last time, I wouldn’t be surprised if the BVerfG was now even more restrictive with providing information on the proceedings.

11. About UPC and Democracy, a quick search points to the problems of the design of the UPC:

    http://www.nounitarysoftwarepatents.uk/

    “9. We believe the UPC is not counterbalanced by an elected parliament, not even the European Parliament, making this court a quasi-legislator when it comes to patent law;

    8. We believe the UPC is an undemocratic instrument, whose 130 pages of rules of procedure have not been debated or drafted by parliaments, but by an administrative committee populated by members of the patent industry; this administrative committee would also have the power to change the treaty at will without consulting any parliament once the Unitary Patent is running; Parliaments also never had any power nor a procedure to amend those rules of procedure; citizens and companies don’t have democratic means to influence this important piece of regulation;”

    For point 8, I suspect (not sure) that the GFCC 2020 agreed the concept that the rules of procedure and the court fees could be made with “indirect democracy”, with an intergovernmental body where national parliaments are “supposed” to control their delegations, and where countries have a vote (weighted?). Delegations made out of “Officials”, not “Ministers”. I am wondering if this is not problematic as well, as Ministers voting in the Council cannot be replaced by “Officials”.

    1. Jan, as we have seen with G3/19 the European Parliament has, by way on an EU Directive, the power to amend the EPC. Since the UPC can only consider patents which have already been granted, there would appear no particular reason to have dual level of control.

       1. G 3/19 showed the EPC can be amended by way of a NOTICE of the European Commission, not of a EU Directive…

       2. There is so much that is wrong with your assertion that it is hard to know where to start.

          The European Parliament has no power to amend the EPC. Together with the Commission, the Parliament can create Directives and Regulations that the EPC Member States can use as the basis for an amendment of the EPC. However, the law (at the EPO) governing European patents does not change unless and until the EPC is amended.

          Whilst G 3/19 related to a provision (Article 53(b) EPC) that was mirrored under the Biotech Directive, there was no amendment of “EU law” in that case. In fact, there was only an Interpretative Notice, which the EBA concluded was NOT legally binding under the EPC.

          Finally, the UPC Agreement is an international treaty and so, in common with the EPC, is NOT under the control of the EU. The same is true for any rules established by the UPC’s Administrative Committee.

          In my view, it is dangerous to assume that the UPC (or its rules) will be drafted / updated strictly (and only) in compliance with EU laws. The “control” exerted by the EU Parliament and Commission is simply too indirect. Further, as we have seen with G 3/19, those laws are open to (potentially questionable) interpretation. Moreover, the mechanisms for FORCING compliance with EU laws are notable by being absent, toothless or simply too indirect, slow and/or difficult to rely upon.

          For example, if the Participating Member States, and hence also the UPC’s Administrative Committee, all agree to establish rules that are based upon an absurd interpretation of a particular provision of EU law, how can users of the UPC seek to address this? What happens if the users in question have no cause of action in a territory (or in respect of an IP right) that falls outside of the exclusive jurisdiction of the UPC? It is not hard to see how, in practice, the UPC could operate with effectively zero accountability in such circumstances. The EPO certainly does.

12. @ Light Blue,

    As far as G3/19 is concerned, the European Parliament had nothing to do with it. There even was no EU Directive at stake when R 28(2) was introduced. R 28(2) was adopted by the Administrative Council of the EPO following a Notice issued by the EU Commission that the EU legislator’s intention when adopting Directive 98/44/EC, was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes.

    If G 3/19 would have been the consequence of a decision of the CJEU it could be at pinch understandable that something had to be done, but certainly not merely following a notice from the Commission and leading to the contortions around the “dynamic interpretation”. The proper way to solve the problem would have been to Amend Art 53(b) and not introduce R 28(2).

    An indirect influence was there when it came to the original amendments of R 28 as there was also Directive 98/44/EC and the famous Bürkle decisions of the CJEU.

    Consensus that certain patents should not be granted under Art 53(a) was there independently of what was decided by the European Parliament or the CJEU. Just think at all the debate about the onco-mouse. The onco-mouse has never been discussed in Brussels or Luxembourg. As the EPO is an organisation independent from the EU, the European parliament has anything but the power to amend the EPC. All member states of the EU are member states of the EPC, but the contrary is not true.

    Neither the Commission, the European Parliament or the CJEU have the power to amend the EPC!
    The EPC is a treaty totally independent from the Union and does not have to follow the evolution of Union Law.
    The UPCA is by no means under the control of the CJEU. The UPC can refer prejudicial questions to the CJEU, but those questions can only rely to the interpretation of Union Law, but can certainly not have for subject interpretation of the EPC which is not Union Law.

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