The recruitment of judges for the Unified Patent Court will start soon, now that the Preparatory Phase preceding the opening of the Unified Patent Court has officially begun. According to the UPC Preparatory Committee the preparatory phase will last at least eight months.
The UPC Preparatory Committee stated on its website: “Austria was the first Member State to ratify the UPC Agreement and yesterday the loop was closed when it deposited its instrument of ratification of the Protocol on Provisional Application of the UPC Agreement. As such, Austria is now the thirteenth Member State to participate in the provisional application of the UPC Agreement. (….)
This event marks the start of the Provisional Application Period (PAP) and the birth of the Unified Patent Court as an international organisation. During the PAP, the last part of the preparatory work in establishing the Court will be conducted.”
Alexander Ramsay, chairman of the UPC Preparatory Committee, told Kluwer IP Law that he considers “recruiting the best possible judges and enable them to function as a unit” as the main upcoming challenge. “The next step of the recruitment will be the decision of who to call for interviews and then conduct the interviews. This will be done during the spring and start as soon as possible after the inaugural meetings of the Committees.”
According to the UPC Agreement the first president of the Court of First Instance shall be French. There are no such rules for the president of the Court of Appeal, Ramsay clarified.
With Committees Ramsay is referring to the governing bodies of the Court: the Administrative Committee, the Advisory Committee and the Budget Committee. According to Ramsay, the date for the inaugural meetings is “under consideration. They have not been decided yet but will be set in the near future.”
According to Ramsay the ‘draft Declaration on the authentic interpretation of Art. 3 of the PAP-Protocol, following the United Kingdom’s withdrawal from the Unitary Patent System’ has not yet been signed. As the Preparatory Committee announced earlier, such Declaration would be signed in the margins ‘of a future COREPER meeting’ to clarify the consequences of the Brexit from the UP system. But it now seems the text is still under discussion. Ramsay: “There has been no signing of a declaration. The State Parties to the Protocol agree with the Depository that the entry into force clause of the Protocol is to be interpreted in a way that the ratification of the United Kingdom is no longer required. The State Parties are currently considering how to formulate this.”
Ramsay also said the issue of the relocation of the London central division, also a consequence of the UK’s departure from the UP system, is still open: “It is clear that the UPC will not have a presence in the United Kingdom. Therefore, there will be no section of the central division in London. The Signatory States of the UPC Agreement will discuss and decide where to reallocate this division. However, the entry into force of the Agreement and the start of operation of the Court is not subject to the finalisation of these negotiations. Should they not be concluded, the existing seats and sections of the central division (in Paris and Munich, ed.) will temporarily deal with all the central division cases.”
The Unitary Patent system has started with 17 states (16 plus Germany) that have or, in the case of Germany, for certain will ratify the Agreement before it enters into force. Ramsay hopes that additional member states will ratify as well.
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So it is confirmed. Both the PPA and the UPC Agreement have/will “come into force” BEFORE the Participating Member States agree upon how crystal-clear language relating to the UK / London will be “reinterpreted” to permit their entry into force, and subsequent operation.
Talk about “fake it until you make it”!
Whilst I appreciate that the rules for interpreting international laws can be somewhat flexible, it is clear that what is contemplated represents nothing other than substantive amendments to key provisions of international treaties … which amendments have no basis whatsoever in any provision of the VCLT.
“Ramsay hopes that additional member states will ratify as well.”
Let’s bring this monster to the CJEU first.
I would encourage the representatives of the Netherlands and Italy to have a long, hard think about the following statement of Mr Ramsay.
“Therefore, there will be no section of the central division in London. The Signatory States of the UPC Agreement will discuss and decide where to reallocate this division. However, the entry into force of the Agreement and the start of operation of the Court is not subject to the finalisation of these negotiations”.
If the INITIAL operation of the Court is “not subject to the finalisation of these negotiations”, then the same is self-evidently true for the CONTINUED operation of the Court. Once the Court is up-and-running, what leverage might any of the other Participating Member States have to persuade France and Germany to relinquish their unexpected Brexit bonus?
According to which part of the UPCA and the PAP (and its “authentic” interpretation…) “the existing seats and sections of the central division (in Paris and Munich) will temporarily deal with all the central division cases” ?
Why Paris and Munich can become “temporary” seats and Milan or The Hague cannot?
It has been from the beginning the aim of the promoters of the UPC to push it through at any rate and any cost so as to end up with fait accompli.
It is an absolute disgrace that an official organ of the EU takes a decision on a topic which has not yet been agreed.
Any judge seeking a job at this court whilst the problem of Art 7(2) UPCA is not correctly solved, that is in a legally binding way, that is by renegotiating it,disqualifies himself.
That big internationally active industry and big internationally active lawyers firms disregard the clear wording of the terms of a signed and ratified treaty is not a surprise as the committee drafting the RoP was co-opted. They want a good ROI, no more, no less.
But that judges are accomplices of such an exercise is not tolerable.
How can trust be given to a court so composed? If cases in IPC classes A and C go to Paris and/or Munich, those sections are in breach of Art 6(1)ECHR!
How can a court in which a judge can be removed from office by his peers without any means of redress can be a court according Art 6(1)ECHR or in conformity with EU law!
First case, someone will try to invalidate a pharma patent 🙂