Slovenia has deposited its instrument of ratification for the Protocol on the Provisional Application of Unified Patent Court Agreement and the UPCA itself.
According to a message of the UPC Preparatory Committee, this brings “the Unified Patent Court one step closer to its launch”.
“Thanks to the Slovenian ratification and following the recent ratification of the PAP-Protocol by the German government, one last ratification (or expression to be bound) is now necessary in order for the Court to enter the final phase of its set-up”, the Committee has stated.
The expectation is that Austria will be the decisive Member State and will be in a position to ratify the Protocol within months. Half August, the UPC Preparatory Committee wrote it expected this “to take place in a timely manner during autumn of this year”.
Two weeks ago however, the epi wrote that it expects “Austria could be able to ratify the Protocol on Provisional Application of the UPC Agreement as the thirteenth Signatory State before the end of Q1/2022.”
The epi has recently published an updated overview on the ratification process of the Unified Patent Court Agreement. It has been compiled by the epi Litigation Committee.
Once the last remaining ratification of the Protocol or an expression to be bound by it has been registered, the period of provisional application “and therefore the implementation of the UPC as an international organization” will be triggered, according to the UPC Preparatory Committee. “During this phase of provisional application, the following will take place, in particular: the adoption of the secondary legislation and the Court’s first budget, the completion of the electronic case management system including stress testing, the process to select and appoint the judges of the Court.”
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The UPC lobby is considering that the UK requirement for the PPA to enter into force will vapourize?
UK is still a requirement for the PPA to enter into force?
It seems the UPC Preparatory committee has found a workaround to put it into force anyhow.
The workaround is the best-kept secret of the EU: after more than 5 years nobody knows how it works
It seems to me that there is a fundamental inconsistency between two beliefs held by proponents of the UPC.
That is, it appears that the UPC’s proponents believe that it is necessary to bring the PAP into force in order to provisionally apply the Articles of the UPCA mentioned in that Protocol, whereas it is NOT necessary to bring into force any other international agreement in order to (provisionally) amend Article 7(2) of the UPCA.
The conclusion and ratification of the PAP indicates that the Participating Member States believe that, on the subject if provisional application, it is necessary to proceed in accordance with the VCLT.
That is, because the UPCA does not itself contain any provisions which would permit its provisional application, the Member States have “in some other manner so agreed” for provisional application of certain parts of the UPCA. This is in accordance with the requirements of Article 25(1)(b) VCLT.
However, when it comes to amendment of Article 7(2) UPCA, it seems that the Participating Member States are of the view that it is NOT necessary to proceed in accordance with the VCLT.
Because Article 87 UPCA provides rules for amending the UPCA, Article 40(1) VCLT dictates that the UPCA must only be amended in accordance with those rules. This creates an inescapable trap, as Article 87 can only be relied upon if and when the UPCA comes into force … which cannot happen unless and until Article 7(2) UPCA is amended to remove the reference to a court location in a non-EU state.
The obvious solution to all of this would be to ditch the current UPCA and to then draft, sign and ratify an amended version that makes no mention of London. Indeed, this is the only solution that would stand any chance of complying with the provisions of the VCLT. However, it seems that the risks associated with the inevitable squabbles over the new location(s) for the London branch are too much for the UPC’s proponents to bear, with the consequence that the Member States have now developed selective blindness to certain requirements of the VCLT.
Now that the EU is (again) lecturing Poland on the need to adhere to the rule of law, it is immensely hypocritical of the Participating Member States to simultaneously pursue a course of action that, purely for the sake of convenience, completely trashes the rule of law.
The solution with Art 87(2) UPCA is a non-solution as Art 87(2) is only there to amend the UPCA after all contracting states have amended their national legislation to either Union law or to international treaties relating to patents. It is a kind of administrative adaptation in order to avoid a diplomatic conference which in a sense would be unnecessary.
But even then Art 87(3) UPCA provides that if one contracting state does not agree, then it will be necessary to convene a revision conference.
The solution under Art 87(2) is not a legal basis for provisionally allocate the duties of the London Section to Paris and/or Munich, for later allocating it to another country/city.
This is legal gobbledygook and cannot be envisaged seriously!
The PAP still mentions the UK as necessary signatory state!
It is clear that the UK will not participate, but is it possible to conveniently simply ignore the terms of an international agreement?
This is what I heard up to now, but I have not got a legal basis for this position.
What does it help that Slovenia has ratified the PAP when the problem of Art 7(2) UPCA has not been solved.
What is the legal basis for ignoring here again the terms of an international and ratified agreement?
Art 31 and/or 32 VCLT could be used to interpret the PAP or the UPCA, but in both cases the wording is crystal clear and does not allow any different interpretation. This is a matter of fact and not an opinion.
Should I have understood it correctly, the question about the UK being still present verbatim in the UPCA & PPA and their upcoming entry into force was recently answered during a recent session I attended, about the current status of the UPC in a way, that this will be easily dealt with under the interpretation rules of the Vienna Convention, such that UK is to be interpreted as meaning Italy (in view of Art.89(1) UPCA, as I understand it) and that the relevant representatives of all the MS of the UPCA will agree on this… It does not sound convincing for me, but who am I to tell, probably Courts will, once this will be challenged.
The replacement of UK by Italy in the PPA using the same logic as the art89 upca is also what i heard from someone well informed.
I can understand the train of thought (I hesitate to call it “logic”) in attempting to rely upon Art. 89(1) UPCA to solve the problem with the PAP. However, interpreting “the United Kingdom” to mean “Italy” does not help to solve the issue with Art. 7(2) UPCA, which instead refers to “London”.
In any event, this train of thought is, or at least by all rights ought to be, heading into the buffers. The very reason that drafting and ratification of a new UPCA is not on the table is that all of the UPC’s proponents want to avoid the risk that squabbles over relocation of the London division of the UPC could kill the entire project. In other words, it is abundantly clear that the current UPCA does not point to any implicit, or uniformly accepted, alternative meaning for “London”.
For one thing, even if one can determine the country that should host a division of the UPC, this does not equate to an agreement between the Participating Member States upon the precise location for the court within that country. For another, and as Attentive points out, it is impossible to see how methods of interpretation under the VCLT could be used to afford different meanings to terms (such as “the United Kingdom” and “London”) that are crystal-clear, and therefore need no interpretation.
Which all reaffirms my original suspicions about how the UPC’s proponents would “solve” the issues with the PAP and UPCA … namely, “fake it until you make it”.
A possibility to interpret the UPCA under Art 31 or 32 VCLT exists.
This possibility is however limited to the replacement of the UK by IT or NL when it comes to designate the countries necessary for entering into force of the UPCA. The necessary ratifying countries were the three having a given number of EP patents validated at a given date. This implied GB, DE and FR. Replacing GB by IT or NL is not a problem. Anything beyond this, is a problem.
DE, GB and FR all wanted the central section on their territory. After a typical “Brussels” marathon negotiation it was decided to split the central division in 3, London Munich and Paris.
The trust between GB, DE and FR must have been such that to avoid any fiddling, the only way to come out of the deadlock was to put the locations in the UPCA itself. That is why we have the problem of Art 7(2). The same applies to the PAP. As conceived it cannot work without GB, DE and UK which are here again mentioned expressis verbis.
Art 31 and 32 cannot apply to Art 7(2) or to the PAP as the wording is crystal clear and does not suffer any lack of clarity. Art 31 and 32 only apply if a part of a treaty is unclear.
Does anybody think that the countries wanting the duties allocated to London on their territory will accept the “provisional” allocation to Paris and/or Munich? If they do they must still believe in father Christmas!
There are clear legal problems with Art 7(2) and the PAP but they are staunchly ignored by the UPC proponents. They fear that if the UPCA needs to be re-ratified to solve the actual problems, the momentum for the UPC will be lost and all those having participated to its elaboration and especially to the Rules of Procedure for the UPC will miss a return on their investment. It is a simple as that.
The Vienna Convention is a fig leaf of those who cannot find proper legal solutions: there is nothing there which could allow the deletion of UK from Art. 3.1 PAP or London from Art. 7.2 UPCA.
By the way, those invoking the Vienna Convention have not read art 56 VCLT, which applies to the UPCA and the UK.
Thus, the only solution is to amend the PAP and the UPCA.
On reading that last comment from Jiri Slavik on the UK = Italy point, I really did laugh out loud.
I can imagine in a law firm a partners’ meeting agreeing unanimously that (say) in Paragraph X of the Partnership Agrement, “40%” actually means “60%”. Is it anybody else’s business but that of the law firm partners? Shouldn’t they be free to agree amongst themselves whatever they like? And they are not even Sovereign States.
So what if the UPCA MS’s agree unanimously that in their Agreement “UK” means “Italy”? I mean, they are all Sovereign States, aren’t they? Who is going to tell them they can’t do what they want to do? Some supra-national body perhaps? If so, which one? These days, all such bodies seem to be powerless in the face of rampant nationalism.
It seems that the MS’s all think it “easy”. Perhaps they are right.
The problem is that the VCLT is only there when a treaty needs interpretation. No interpretation is necessary when the treaty is crystal clear. What do you need to interpret when UK or London are written in the treaty?
France and Germany have unilaterally decided to distribute “provisionally” the duties allocated to London to Paris or Munich in order to allocate those duties later to another country. Do you think that Italy or the Netherlands will just nod in approbation with this trick?
I think that we might have to wait for a long time for such unanimity of the contracting states!
I have just ever heard Italy claiming that the London duties should go to Milan or Turin.
Italy has been asking for years to move the London section to Milan, since Italy is now the third most important country of the UPC, however there is no legal solution to do so.
For the same reason, the London section cannot be moved to Paris or Munich.
If they have agreeded, the UPCA MS could have easily amended and re-ratified the PAP and the UPCA after Brexit (since 2016…).
However, they have not done so and now there is no other legal solution.
Max, I think that you have hit the nail on the head. When it comes to international agreements, the rule of law is only an impediment for those who are bothered about following it.
Exhibit A would be the Northern Ireland Protocol. Does anyone seriously believe that, as soon as the eminently predictable downsides of that Protocol started to produce noticeable effects, a UK government headed by Mr Johnson would hesitate to (threaten to) either ignore or override the provisions to which it had originally agreed (after YEARS of negotiation)? I mean, which court could force the UK to honour the agreement that it signed? Whilst the EU may have ways of “encouraging” the UK to do so, all of those are practical (eg treating the Withdrawal Agreement as having been breached, and therefore imposing WTO-level tariffs on all trade with the UK). However, this then means that the EU will have to weigh up whether the UK’s position on the NI Protocol is so unacceptable that it makes it worthwhile blowing up the whole Withdrawal Agreement.
This all reinforces the fact that there is no way for citizens, as opposed to countries or trading blocks, to ensure that signatories to an international treaty honour their obligations under that treaty.
Of course, this begs the question of what any citizen could do if, once the UPC is up-and-running, the Participating Member States permitted that court to operate in ways that diverge from any sensible interpretation of the provisions of the UPCA. In this situation, any citizen whose (patent) rights were adversely and improperly affected by the UPC’s actions would then face an impossible situation. That is, to whom would they turn in order to ensure that the UPC handles their rights correctly, as set out in the relevant (international) legislation?
If the powers that be within the UPC were intent upon adopting an implausible interpretation of the UPCA, what could be done? If the matter related to a patent falling within the (exclusive) competence of the UPC, would any national court agree to intervene?
This may all sound far-fetched. However, precisely this kind of scenario has already played out (twice!) at another international organisation tasked with handling patents, namely the EPO. The EPO’s management has pushed absurd “interpretations” of both Article 53b EPC (by way of Rule 28(2) EPC) and Article 116 EPC (including by way of Article 15a RPBA). On both occasions, the Enlarged Board of Appeal has found “creative” ways of falling in line with the EPO management’s agenda. One might also question whether they have done so on a third occasion, namely in G 2/19.
Welcome to the new age of “democracy”, where unfettered powers to interpret and apply laws are handed to international civil servants who, due to privileges and immunities, are completely unaccountable to the citizens whose rights they affect!
I think you will find that it was the Commission of the EU which ignored the NI protocol, establishing an inner-Irish border for the supply of Covid-vaccine.
That may well be so. But do you have any comment on the broader point about the difficulty of enforcing obligations under international treaties? Or the effective re-writing of those treaties by unelected and unaccountable civil servants tasked with their implementation?
I believe that the EU still has an effective court system for determining the meaning of EU laws (unlike the EPO). Civil servants cannot simply give a new meaning to existing legislation.
“I believe that the EU still has an effective court system for determining the meaning of EU laws”:
Well, it may have escaped your attention, but the UPC Agreement and the rules under that agreement are NOT “EU laws”. Remember also that the UPC will (ultimately) have exclusive jurisdiction for certain matters in respect of certain Participating Member States. This means that the national courts of those Member States will have two reasons not to go near matters relating to interpretation of provisions of the UPCA or its rules.
Further, even if a national court does reach a conclusion regarding the interpretation of a provision of the UPCA (or its rules), that would not be binding upon either the UPC or the national courts of any other Member States. Indeed, I put it to you that, in the interests of harmonisation, the national courts would instead be much more inclined to view the UPC’s interpretations (no matter how nonsensical) as being persuasive for them.
“Civil servants cannot simply give a new meaning to existing legislation”:
I suggest that you (re-)read G 3/19 and come back and explain to me how it is that the AC (which is nothing more than a collection of civil servants) has not done precisely what you claim is impossible. The tools to achieve precisely the same kind of result will be available to the Administrative Committee of the UPC … which will again be staffed by unelected and unaccountable individuals.
You and Max Drei are certainly right when it comes to the UPC.
But should we not try to resist to such behaviour?
One way to resist would be for a party losing a case in classes A and C but taken in Paris and/or Munich to oppose the execution of the judgement in any contracting state of the UPC.
Attentive, you remind me of that old definition of politics as “The art of the possible”. Within the EU, we need look no further than the PiS in Poland to see where that gets us. Here in Germany, the Green Party leader, Habeck, said recently in a good Spiegel interview that the time has come to set aside that definition and rise to something more ethical. Can the emerging soon-to-be-governing 3-Party coalition in Berlin reach new heights of fudge? Or will it rise to the challenge set in the 18th century by Edmund Burke, the Irish philosopher-politician and the father of Johnson’s Conservative Party? Burke explained to the voters of Bristol that, in the moment he sacrifices his judgement to indulge the opinions of those who voted for him, he will betray the people he represents in Parliament? In our system of representative democracy, we have come a long way from that attitude, I regret, in the last decade or so.
Attentive, I suspect you are going to have to wait a long time, till a UPC case runs as far as your imagination. Only big pharma will use the UPC, and they (being rational actors) will settle long before the litigation goes that far.
Dear Attentive Observer, the comment of Oct 24 from Concerned Observer about the unaccountable civil servants occupying the seats around the EPO’s Administrative Council table and that of the Admin Cttee of the UPC set me thinking further.
You envisage enjoined parties disobeying the orders of a UPC court. I can imagine that very thing happening. And if contempt of court becomes routine, what a sorry state of affairs that would be, for the Rule of Law within the EU.
Back in1973, when the EPC was born, the EU Member States baulked at setting up a pan-EU court for patent infringement. At the time, this was a disapointment for many. But as of today, I am inclined to think they were right to stop short of a Community Patent Convention.
Compared with 1973, the power of the trans-national “global player” corporations has swelled enormously, including their lobbying power, including their pressure for the UPC. One imagines that they will be the predominant users of the UPC, between themselves, using it as an “alternative” dispute resolution system, and reserving its injunctive power for use only against troublesome upstarts who threaten the profits to be made from their industry-wide cartels.
A protocoll where all members agree that London means Milan and UK means Italy could indeed be a pragmatic solution. IF this aarrangement is successfully challanged in a country, the agreement could be opended again and amended properly… usually, the constitutional courts would grant a time period to get this done rather than directly declare a countries participation null and void because of this I would guess.
Instead of reating a new protocol, the MS may just amend the PAP.
In any case, the new/amended protocol must be signed/ratified (again) by the MS.
You are right, but the proponents of the UPC rather go through the wall than try to tackle the real problems.
They hope that nobody will notice, but for this it is already too late.
So let’s ignore the problem and the facts such created will be such that a point of non-return has been reached.
I wonder whether the first party to face an infringement procedure under the UPC could not sue the patent proprietor before a criminal court of for extortion, intimidation and harassment committed by an organised group on the basis of obviously invalid legal claims.
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