The start date for the Unified Patent Court remains 1 June 2023. This has been confirmed to Kluwer IP Law by Johannes Karcher, acting chairman of the Administrative Committee.
The decision was made by the UPC member states last week at a meeting of the Administrative Committee in Luxembourg. Due to problems with accessing the UPC’s CMS, based on a strong authentication scheme, the opening of the court had earlier been postponed for two months. But apparently there is confidence now that this issue has been solved. Last Friday, the UPC published a user guide on how to create a new account to access the CMS using the strong authentication.
If the court is to open in June, it means that Germany will have to complete the UPCA ratification procedure and deposit its instrument of ratification with the secretariat of the European Council this month. No information has been shared about an exact date. The UPCA enters into force on the first day of the fourth month after the deposit of the thirteenth instrument of ratification (art. 89 UPCA).
Johannes Karcher declined to comment on a JUVE Patent report last week, that ‘UPC states have agreed on Milan as the third seat of the Central Division. Several well-informed sources have reported that the states gave the go-ahead to Milan on Wednesday and that this is to become effective at the UPC start date. Milan is currently the only contender to succeed the former London divisions and, according to JUVE Patent information, has the support of Germany, among others.’
Last week the court also published an update on training activities. ‘A first training, which took place in Budapest from 17 to 21 January 2023, was dedicated to appointed judges of the Court (see also news here). With the participation of 82 judges, including the Presidium, as well as the newly appointed Registrar and Deputy-Registrar, this intensive five-day event provided an excellent opportunity for a first general meeting and exchange.
The focus of the training – organized in collaboration with the European Patent Academy and with the support of the Hungarian Intellectual Property Office – was on the Rules of Procedure (RoP), with panel presentations and group discussions on the common approach of the Court, cooperation among legally and technically qualified judges, and a presentation of the case management system (CMS). Panel speakers included senior judges of the Court with extensive patent experience, as well as senior litigators and members of the RoP Drafting Committee. The last two days of the training took the form of a mock trial.
A further training, focusing on the internal rules and practice of the Court, took place from 31 January until 2 February 2023, also in Budapest. With the participation of around 50 staff members from various divisions of the Court and with functions ranging from clerk, to IT expert, this training provided a solid overview of various procedural rules and of CMS-related proceedings, which were presented by experts and judges of the Court.’
At the end of February and early March more training will be held, focusing on the functioning of the Court’s CMS.
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“Milan on Wednesday and that this is to become effective at the UPC start date.”
There is no source of EU law that says Milan can take the place of London, what they are doing there is again abusing the law, using the withdrawal agreement as an excuse.
It still remains a mystery what could be the legal basis for amending Art 7(2) UPCA in view of the crystal clear mention in it of London as section of the Central Division.
The fact that Milan is now mentioned leads to suppose that the “provisional” allocation of the duties allotted to London to Paris and/or Munich and later to another city was a too hot potato.
It is difficult to find a legal basis in Art 87(2) as suggested by some proponents/supporters of the UPC since this article has a totally different function and is not mentioned in the PPA.
A declaration under Art 31 VCLT does not appear helpful as the wording of Art 7(2) UPCA does not lead to any misinterpretation.
That the UPCA does not provide an exit clause has never been considered and the withdrawal of the UK through a “Note Verbale” accepted by the “Depository”. This is a major problem, but as all problems it has been carefully ignored.
The fact that the acting chair of the Administrative Committee refuses to take position on a possible allocation to Milan shows that either he does not feel easy about the situation, or that the Administrative Committee is preparing a surprise, not to say a coup.
Whatever is decided by the Administrative Committee, the decision will be judged in the light of the applicable legislation, including the VCLT. It better foots on a solid basis.
The PPA and the PAP were created with the clear intent of “fixing” some aspects of the UPCA, otherwise it could not have entered into force.
What if all UPC contracting States signed a “Brexit Protocol” which “fixes” the UPCA, the PPA and the PAP?
For example, the “Brexit Protocol” could contain such a measure: “If a seat of the central division under Art. 7(2) is not available at the entry into force of the Agreement, this seat shall be temporarily allocated to…”.
What you are aiming at is an interpretation according to Art 31 VCLT.
This has not been done with the PPA. It is the depository which has decided on its own volition that the PPA was in force. Legal basis?
The PPA has not been devised with the intent of “fixing” some aspects. The same applies to Art 87(2) UPCA!
Have you realised that the UPCA does not have an exit clause?
Revision according Art 87(2) UPCA:
“2. The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law”
The UK withdrawal agreement is part of Union law, but it does not say that the court of London has to move to Milan.
National parliaments have signed for London, not Milan.
The Administrative Committee is not a law maker and should not be.
As far as I understood, the UK withdrawal agreement is an international treaty, not Union law, and it does not relate to patents.
Art 87(2) UPCA is there to avoid a diplomatic conference in order to amend the UPCA when all member states have adapted their national law to bring it in line with international treaties relating to patents or union law.
Art 87(2) UPCA is not there for merely ignoring what is written in the treaty and should be amended as a consequence of Brexit. Neither the provisional allocation of the duties allotted to London followed by a later allocation to another city nor the direct replacement of London by any other city is covered by Art 87(2) UPCA.
Art 87(2) UPCA is not even mentioned in the PPA and can only be actioned after the opening of the UPC. The conditions of application of Art 87(2) UPCA are very precise and do not allow fiddling at will with the agreement by the Administrative Committee.
Furthermore, Art 87(2) UPCA has to be read in conjunction with Art 87(3) which provides that a Review Conference of the Contracting Member States has to be convened if a Contracting Member State declares within twelve months of the date of such a decision, on the basis of its relevant internal decision-making procedures, that it does not wish to be bound by the decision.
The UPCA remains however silent to what happens to the membership of a contracting state if it should not ratify the revised agreement. This is not a surprise as the UPCA does neither provide an exclusion clause after non-ratification nor denunciation clause.
At least such clauses are to be found in the EPC, cf. Art 172(4) and 174 EPC.
The Administrative Committee of the UPC has a law making function as it can amend the Rules of Procedure of the UPC, cf. Art 41(2), the same way as the Administrative Council of the EPO can amend the implementing rules of the EPC, cf. Art 164.
In both cases the amendments should not contradict the respective treaties.
This is a supplementary reason why the possibility to amend the UPCA by its Administrative Committee are severely restricted. Art 87(2) UPCA is not a playground for the Administrative Committee to simply do what it wants. .
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