Italy, France and Germany have agreed on and proposed a division of the competences that were originally designated to London, between the three seats of the UPC central division in Milan, Paris and Munich. Milan could start taking cases around July next year.
According to the proposal of the three member states, Milan will be competent for IPC Section A patents (human necessities), the Munich section also be competent for IPC Section C patents (chemistry and metallurgy) and the Paris seat for SPCs from Sections A and C. In other words, it looks like the competences will be divided as rumoured over the last months. Organizations in Italy had earlier qualified this division as ‘unacceptable’, but apparently Milan and Italy have given in.
Italy, France and Germany presented the ‘outcome of their trilateral discussions regarding a permanent solution on Article 7 (2) UPCA and Annex II of the Agreement in which the reference to London has become obsolete after Brexit’ during a meeting of the Administrative Committee on 2 June 2023.
According to the UPC, ‘Member States will meet again on 26 June with the view to taking a decision. Such a decision based on Article 87 (2) UPCA could already be effective after 12 months. Provisionally, until a final solution is implemented, the allocation of cases to the Paris seat and Munich section is governed by the decision of the Presidium of 8 May 2023.’
Additional technically qualified judges appointed
The UPC also announced that the member states, ‘on the basis of the opinion of the Advisory Committee, agreed unanimously on a list of most suitable candidates for appointment as Technically Qualified Judge (TQJ). Altogether around 20 additional TQJ will be offered a position as a part time TQJ. Also, around two dozen Legally Qualified Judges (LQJ) have been selected to further build the “reserve list” of the UPC. Additions in both areas will be considered later this year on an opinion by the Advisory Committee. The measures are intended to reinforce the capacity of the Court already from the early days of its work.’
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“Organizations in Italy had earlier qualified this division as ‘unacceptable’, but apparently Milan and Italy have given in …”: I was sure that a populist, nationalist and EU-sceptic government would give in in favour of the other “hated” nations. Populism is all bark and no bite, words and no deeds, and apparently people are happy with this … Sorry for this digression that has very little to do with UPC or patents
Both decisions don’t have any legal basis.
Upca 87(2) does not allow the creation of EU Law.
The European Commission should intervene.
Given the political support that the UPC enjoys, that is not going to happen.
A more interesting question is what will happen if and when the CJEU is asked to consider questions that concern the legal basis for the UPC as currently constituted. For those of us who are keen on the rule of law being upheld, it is impossible to conceive how the current legal basis for the UPC might withstand even the most casual of (impartial) judicial scrutiny. Thus, for the UPC to survive, ether its proponents must come up with some truly creative and audacious legal arguments, or the CJEU must find a combination of smoke and mirrors to bamboozle most of the legal profession into believing that everything is awesome.
My bet is on BOTH of those possibilities playing out in practice … though I have to say that the CJEU has a poor record when it comes to writing convincing arguments on complicated and controversial matters. So perhaps the more likely outcome is that we get an incomprehensible mishmash of Delphic utterances from CJEU that omits the crucial reasoning for the decision.
On the other hand, the UPC as currently constituted could significantly undermine the integrity of the EU legal order. So perhaps we should not yet rule out the possibility that the CJEU gives it the thumbs down … though I think that the chances of that happening are low, as it would be a disaster of epic proportions for the Commission.
I should also mention national courts, which could perhaps be persuaded to get involved if parties use them to challenge the jurisdiction of the UPC. However, my suspicion is that they will be reluctant to get involved, especially as doing so could easily end up with them reaching decisions that seriously damage the Commission’s shiny new toy.
Remember, where there is a will there is a way … and where there is a political will, then there is often no way for dissenters to turn the tide.
That a reference to London has become obsolete is one thing,
That France, Germany and Italy have agreed on a distribution of tasks is another one.
What about the legality of the decision of the presidium provisionally allocating the duties meant for London to Paris and Munich.
Furthermore, Art 87(2) UPCA has never been designed in order to overcome the problems of Brexit.
This is the more so since the UPCA does not contain an exit clause, contrary to the EPC
it seems to me that here someone is only hoping that the UPC proves to be the original sin and the origin of all evil, no matter for whatever reason or technicality, and, I suspect, as an indirect proof of the incapacity and illegality of the EPO and its higher bodies, a sort of war, under a different guise, conducted by some examiners against their employer: are these the same ones (a minority!) who should rather think first about their work and professionality which is, as seen as from the other side, not always very “lawful”?
Eh? I’m sorry, but you will have to explain to me the relevance of your comment to the comments of others on this thread. We all have our hobby horses, but need to be careful not to mount them at inappropriate moments … or to cast spurious allegations once mounted.
As I have previously commented, international law is the realm where the rule of law and democratic accountability goes to die. There are plenty of examples to back this up, which examples include not only the EPO but also WIPO … plus plenty of other organisations that have nothing to do with IP. Indeed, from my observations over the decades, it seems to me that it is only the limits VOLUNTARILY imposed by those running (or overseeing) them and/or concerted push-back from a majority of the signatory states that can prevent international organisations from going completely off the rails. On the other hand, where there has been “regulatory capture”, it seems to me that the organisations in question are at particular risk of breaching the rule of law in order to achieve desired objectives.
The UPC as currently constituted needs to be viewed in this context. Thus, whilst certain obvious (legal / democratic) deficiencies might not seem so serious at this stage, the clear absence of effective guardrails should be of concern to all of us.
Dear law sniffer,
Accusing some EPO examiners to act against their employer is really far fetched, or are you part or acquainted with EPO’s upper management to come up with such a statement?
You might not be aware of it, but it is rather the contrary. Production/productivity targets are continuously increasing and training time has been reduced by a third. IPQC has shown a deterioration of the quality of the work delivered by the EPO. Mainly due to the excessive production pressure.
If you would like to be treated like this, why do you not apply for a job at the EPO?
In the negative, you should refrain from coming up with such sweeping statements.
The UPC has no influence at all on the work of an examiner. The grant procedure is independent from requesting after grant, a EP with or without unitary effect.
This is a further proof that what you claim does not correspond to any tangible reality!
The UPC is by no means the original sin, but the r
Exult of heavy lobbying by industrial circles and internationally active lawyer firms.
The excuse of SMEs who would profit from the system, which helped pushing through the UP/UPC, has burst like any soap burst would do!