The Italian Government has agreed with France and Germany to set up a branch of the central division of the Unified Patent Court in Milan.
This has been announced by the Italian ministry of foreign affairs and international cooperation. According to a press release, the agreement will be submitted to the other UP member states during the next meeting of the Administrative Committee to be formalized.
According to a press release, the agreement is an important result for Italy and for the Lombard capital, the result of a political choice by the UP member states and intense political and diplomatic action by Italy. ‘The Milanese section will judge important Unitary Patent disputes from all European countries that are participating in the Unified Patent Court, in sectors relevant to the Italian entrepreneurial system. The founding treaty initially envisaged three offices. Italy immediately posed forcefully the need to ensure that a third office could be established and nominated Milan, one of the main European hubs in innovation and intellectual property.
This initiative, in the absence of indications and automatisms in the UPCA, was accepted by the European partners, in particular by France and Germany.
In recent weeks, the Government, in agreement with the local authorities, has been completing the legal and operational procedures so the seat can be set up and operational in one year. The member states of the UPCA have recognized the strengths and objective reasons in support of Milan’s candidacy.’
Remarkably, the press release doesn’t say anything about the competencies the Milan seat of the UPC central division will have. Earlier, it had become clear that there was an agreement that Milan could replace London at seat of the central division, but only if it was willing to leave a considerable share of the London competencies to Munich and Paris. Munich claimed the chemistry and metallurgy cases and Paris wanted jurisdiction over pharmaceutical patents with SPCs – at least 90% of the drugs that have been successful on the market. In Italy this was repeatedly qualified as unacceptable.
Two days ago, the Unified Patent Court announced that when the court opens its doors on 1 June 2023, competencies which were originally assigned to the London seat of the UPC central division – but had to be reallocated due to the Brexit, would provisionally be divided between Munich and Paris, until a final decision was taken on the creation of another section of the central division.
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Yet another abuse of law, as the treaty cannot be amended by a décision if the administrative committee, the Withdrawal Agreement IS not a treaty about patents and does not deal about this issue.
This will be the third abuse of ‘the rule of law’. The list starts to get long.
Unfortunately, Italy immediately gave in to the blackmail of Germany and France, instead of fighting (diplomatically) to obtain all competences of the London section.
Now, with this “unanimous” agreement of the MS, the status quo could hardly be changed.
If a confirmation was needed that the decision of the UPC’s presidium was a political decision, the new situation created by a decision of the French, German and Italian governments is the best one.
The press release of the Italian government is interesting for a series of reasons.
First, the technical areas for which Milan will be competent are not specified. From the comment: “in sectors relevant to the Italian entrepreneurial system”, it can be concluded that files in the IPC classes A and C are most probably not part of the deal.
“The agreement … will be submitted to the other Contracting States of the Unified Patent Court during the next Administrative Committee meeting in order to be formalised”, means that the AC will decide on the new location so that the new allocation is in principle valid as of 01.06.2023.
As Art 87 is not mentioned in the PPA, one wonders what could be the legal basis for such a decision which has necessarily be taken at the latest on 01.06.2023.
The old solution decision of the AC on 8.00 on the day the UPC opens at 9.00 appears to be resurfacing. However, Art 87(2) UPCA does not have the purpose of dealing with the consequences of Brexit!
Art 87(1) provides that a revision is foreseen “Either seven years after the entry into force of this Agreement or once 2000 infringement cases have been decided by the Court, whichever is the later point in time, and if necessary at regular intervals thereafter”, means that the new revision, now foreseen for 2026 is not in accordance with Art 87(1) UPCA as originally negotiated and ratified.
It is amazing to see how learned legally qualified persons can be actors and accomplices of such gross violations of the rule of law.
If this way of doing is successful, we can forget what the rule of law means and what the worth is of a treaty which has been ratified by the parliaments of the contracting states.
I would allow myself to suggest that in its next session, the Administrative Committee of the UPC scrapes Art 20UPCA – “The Court shall apply Union law in its entirety and shall respect its primacy” – as well as Art 21UPCA – “As a court common to the Contracting Member States and as part of their judicial system…..”.
It is indeed difficult to imagine in any contracting state of the UPCA and of the EU, that a government amends the competence and the working of court decided by a law voted in the parliament. Could one imagine the governments of Belgium, The Netherlands and Luxembourg to freely amend and dispose of the legislation founding the Benelux Court if some important unforeseeable event has occurred in the mean time?
The financial interests behind the UP/UPC system must be so huge, that all means are good to start the UPC at any cost on 01.06.2023. The highest cost being the negation of the rule of law.