The start of the Unified Patent Court is a very special time for patent enthusiasts in Europe. Johanna Flythström, a Helsinki-based partner of law firm Roschier has said this in a podcast interview on the occasion of the launch of the new UPC Case Law Tracker from Wolters Kluwer.
“There was a lot of anticipation building up before the launch of the UPC. After years and years of preparations and after all the delays, so there is really a lot of excitement in the air about how everything will be developing”, Flythstrom said.
She is also editor of the KLI publication Enforcement of Decisions of the Unified Patent Court.
In the podcast, the popularity of the system in different sectors is discussed, as well as the role of national IP courts, the German dominance at the UPC and the question when the first fundamental UPC decisions can be expected.
The podcast is available here.
The UPC Case Law Tracker is available on Kluwer IP Law and brings summarized and annotated UPC decisions and orders of the newly launched UPC. More information on the UPC Case Law Tracker can be accessed here.
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“compatibility with EU Law to be tested at some point”
Well, observers are not that confident that the CJEU will agree with the construction.
The UPC won’t forward any question about the legality of their own court to the CJEU without rewriting the questions first.
Once the first judgment out, any loosing party could ask national court to deny the national enforcement of the UPC décision ans challenge the construction of the court, notably compatibility with TEU19(1), TFEU267 and competence under reverse-AETR jurisprudence.
I am curious to see when the crusade of this very objective supporter of the demolition of the UPC miserably fails, which next crusade will keep busy these untouchable observers deserving their high retribution in the bar of the employer: maybe a crusade for better and free wine in the bar?
It is nice to see that basically no one feeds this specific troll 😉
@ law sniffer,
I find your comment derogatory and dishonest, to say the least.
The day you will explain in a convincing manner in how far the whole construction of the UPC abides by the rule of law, and the amendments carried out by the Presidium of the UPC and its Administrative Committee are in conformity with the VCLT, you will be able to indulge in such sneering comments. Until then some moderation would be welcome.
European integration is desirable. The EPC/EPO is such an example of successful European integration. It is difficult to say the same of the UPC.
The way the UPC has been conceived and pushed through is not an example to follow. It is an integration which will only benefit to companies holding a large number of patents and to internationally active, mainly Anglo-Saxon, layer firms. In other words, it is a prime example of what some lobbies can achieve.
If the parliaments would have been honestly informed of what the UPC actually entails, I am not sure that the parliaments having ratified the UPCA would have done so. The real legal problems, also after Brexit, have simply been swept under the carpet, and everything was presented as being hunky dory.
Sniffer, why do you think that it is OK to demonstrate such a lack of respect for those who have doubts about the legal basis for the UPC? You are clearly convinced of the benefits of the UPC. All well and good. But are you 100% confident that there is absolutely no merit to the legal arguments that underpin doubts expressed by others? If there is any shred of merit in those arguments, then what Adam says above is fair comment.
How about tackling the ball (ie the legal basis for the UPC) instead of attacking the player?
Good to know that we have also the Unified Patent Trolls
@ law sniffer,
You must be a staunch supporter of the UPC as you wish that “the crusade of [a] very objective supporter of the demolition of the UPC miserably fails”.
If you call claiming the respect of the rule of law a crusade you are really mistaken. The reaction of some people is a legitimate reply to what can be considered as a well-orchestrated lobby action by those who want to fill even deeper their already deep pockets.
European SMEs have just been used as fig leaf behind which lobbies and vested interests have been hiding, so that politicians and parliaments were lured in accepting a system which was tailored for those interests.
When looking at the vast difference in fees between patent holders claiming infringement and third parties wanting to request nullity of a patent, the imbalance between parties in favour of patent holders is the best proof of the interests which are prioritised.
It is not by merely declaring that the UPC is a court of EU member states and that it will apply EU law, that it necessarily is so. There is actually no EU patent law. EU law touches on ancillary, but important, aspects relating to patents, e.g. SPCs or recognition of judgements. Why has the UPCA never been submitted to the CJEU as it was done for the now defunct EPLA? Was it for fear that it could be declared not conform to EU law?
There are so many problems with the UPC, but anything which could endangered the rattling of the till has been carefully hidden.
Following Brexit, the only correct way of acting would have been to renegotiate the parts of the UPCA and of the PPA and the PPI in which the UK was mentioned expressis verbis. But this would have need a new round of ratifications, and the till would not have been rattling for a long time, if it ever would at all have been rattling.
Solutions were chosen which superbly ignore the VCLT and the decision of the Presidium on Art 7(2) UPCA and the amendments decided by the Administrative Council under Art 87(2) UPCA on the same topic are prime examples. Those decisions have no serious legal basis, especially when taking into account the VCLT.
How could it be that parliaments were led to ratify a treaty containing no exit clause? Even the EU treaties and the EPC contain such a clause!
The absence of an exit clause in the UPCA says a lot about the mind-set of those having pushed it trough: no escape which could endanger our vested interests.
I do not wish European cooperation/integration to miserably fail, but the UPC/UPCA is not a gain when it comes to European integration. It is a kind of integration which is lopsided in favour of a certain players in the IP world.
Last but not least, as barely a third of the patent holders are reisiding in UPCA contracting states, it opens a single door to non-European litigants. Is this really to the benefit of European industry at large and European SMEs in particular?
ok sorry I wanted to make a joke and I exaggerated a bit probably, fact is that we dont make the rules and how these should look like and which interests are to be protected is not our job to decide, and not even to change them, we are payed only to execute what arrives on our table, with all our different roles, there are other people deputed for that and we cannot do their job and not even try to execute their instructions in a more personal way. What you want to change is not a matter of the UPC, but a more general direction that impacts many more and higher layers, and if they do like that maybe there is a good reason behind that we cannot see, or if not it means that no one can do better than that in their position, one thing is to talk another to operate under certain circumstances, and if one cannot accept this he should probably not be part of the game or candidate for a law-maker position
@There is nothing to rave
This UPC-bashing tirade is factually incorrect.
The UPCA has been submitted to the CJEU. This has resulted in the addition of explicit references to EU law and review by CJEU by way of preliminary rulings (Article 20 and 21).
Preliminary rulings are far from being limited to « ancillary aspects ». Examples : decision to stay proceedings in case of opposition ; scope of forced disclosure.
EU patent law indeed exists insofar as statutory law is concerned, this is the EPC. As to the interpretation of the EPC, it will be up to the UPC to build its case law.
There are diverging predictions as to whether the UPC will stick to the case law of the EPO. I heard a technical judge say after a meeting of the judges in Budapest that the UPC will not want to reinvent the wheel. But European patent attorneys are (logically) deeply influenced by the EPO case law and I think this is wishful thinking. I have also heard prominent legal judges make it very clear their independence vis-à-vis the EPO case law.