Despite FCC ruling, Germany wants to push ahead with Unitary Patent system
March 27, 2020
Contrary to all expectations, the German government wants the Unitary Patent project to go ahead as soon as possible, despite the recent ruling of the Federal Constitutional Court, declaring void the Act of Approval of the UPC Agreement.
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„Ich werde mich auch weiterhin dafür einsetzen, dass wir der europäischen innovativen Industrie ein einheitliches europäisches Patent mit einem europäischen Patentgericht zur Verfügung stellen können. Die Bundesregierung wird die Entscheidung des Bundesverfassungsgerichts sorgfältig auswerten und Möglichkeiten prüfen, um den festgestellten Formmangel noch in dieser Legislaturperiode zu beheben.“
In the ruling of the FCC, in a constitutional appeal filed in March 2017 and comprising four complaints against the German ratification of the UPCA, only the complaint about the vote on the Act of Approval was upheld. The FCC judged it was void because in “its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority.” Three more substantive points were held inadmissible.
In theory this allowed the Bundestag to repeat the vote of the Act of Approval and pass the ratification bill in an constitutional way. But virtually nobody expected this to happen any time soon, as the UPCA will have to be amended because of the Brexit and the UK’s decision to withdraw from the Unitary Patent project.
So a simple re-run of the previous approval law with the same UPCA text will not work. It would most probably also be contrary to EU law if Germany were to ratify an agreement that transfers sovereign rights (part of its jurisdiction) to an international court that is currently partly located outside the EU and in a state which has explicitly declared that it is not minded to follow EU law and does not want to be subject to the jurisdiction of the CJEU.
The ministry’s press release doesn’t give any clues about how these issues will be solved. Germany reportedly hopes to give more clarity in the upcoming months.
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Jan Van Hoey
And don't forget the Rules of Procedure made by an administrative committee, which is contrary to the caselaw of the FCC, and caselaw of the ECHR on art6.
Attentive Observer
It might be time to tell the Federal Minister of Justice what kind of treaty the UPC is, and to the benefit of whom it has been set up. There is more than just an amendment to remove London from Art 7(2) UPCA to be carried out, but to look at more deficits of this treaty. Especially, the false allegation that the UPC should be profitable to SMEs has to be rectified! There is a need to combat the lobbies of big industry and its allies in the large IP litigation law firms! Techrights and zoobab: FINGERS OFF!!!
GLB
Errare humanum est, sed in errore perseverare diabolicum.
Concerned observer
From the Ministry that brought you the late night shenanigans that ultimately killed the law approving the UPCA we are now served up a new strategy that has all the makings of another farce. Why prolong the agony and uncertainty? Why not state the obvious and acknowledge that, at the very least, the first step that will need to be taken is renegotiation and amendment of the UPCA? What is to be gained by not admitting that it will take more than just another vote in the Bundestag? Deeply disappointing.
MaxDrei
One expects of a single human being cognitive dissonance, wilful blindness and confirmation bias, an inability to recognise the reality. But an entire Ministry? But at this point, it's nothing more than words, to save face. The reality will soon dawn.