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EPLIT, BRAK, GRUR publish view on German complaint against ratification UPCA

Kluwer Patent blogger

January 25, 2018

(UPDATES) The European Patent Litigators Association (EPLIT) is the latest of several organisations that have published their view on the constitutional complaint against ratification of the Unified Patent Court Agreement in Germany. The complaint was filed last year by European patent attorney Dr. Ingve Björn Stjerna. The Federal Constitutional Court in Germany requested a series of associations and institutions to submit their views concerning the case before the end of 2017.

The Deutscher Anwaltverein (DAV), a German Bar Association, was the first organisation to publish its comments on 10 January 2018. It said the complaint should be dismissed as inadmissible, or if admitted, should be deemed unfounded. (See this report)

Earlier this week the official Bar Association, Bundesrechtsanwaltskammer (BRAK), published its findings as well (here, German language). Just like the DAV, it concludes the complaint should be dismissed or otherwise be rejected.

The German Association for the Protection of Intellectual Property (GRUR) published its report as well (German language). The GRUR doesn’t discuss the admissibility of Stjerna’s claim: ‘As an association with proven expertise in the field of intellectual property, we limit the present opinion to the specific questions of patent law and related issues’. It states the ‘complainant's main concerns’: the (in)compatibility of the UPCA with EU law, breach of the requirement for a qualified majority in parliament, lack of independence of the judges of the UPC and the ‘impermissible blanket authorization with regard to procedural costs and their reimbursement’.

All complaints should be rejected, according to the GRUR report. Its conclusion stresses the importance of the Unitary Patent system: ‘While the status quo is characterized by a coexistence of national patents and national shares of the European patent, each of which is subject to national jurisdiction with regard to infringement and legal validity, the future UPCA should provide a solution to decades of harmonization efforts in this field. It seeks to promote consistency of jurisprudence through a European Unified Patent Court, and to provide concerned parties with an instrument to make the enforcement of patent rights more effective and efficient, while protecting the rights of other parties and their options to defend themselves.’

Yesterday the European Patent Litigators Association (EPLIT) became the latest organisation to publish its comments, here. According to a report on its website, ‘EPLIT has worked with Dr Bracher, a lawyer specialized in German constitutional law of the firm Redeker Sellner Dahs, to prepare a submission that has been filed with the Court on 22 December 2017. EPLIT has argued that the complaint should be dismissed.’ EPLIT is working on the English translation, which will be made available ‘in due course’, probably in about week.

According to a spokesman of the Federal Constitutional Court of Germany, seven institutions and associations submitted statements concerning the constitutional complaint, in reply to the request of the FCC: the German government, the EPO, BRAK, DAV, EPLIT, EPLAW and GRUR. In answer to a question by Kluwer IP Law about the court’s position about the publication of the opinions, the spokesman declared: “It's not unusual that statements were published by the relevant institutions / associations. Generally they do not consult the Federal Constitutional Court before publishing their statements.”

UPDATES 28 and 29 January 2018: The EPLAW told Kluwer IP Law it will publish its opinion on the EPLAW blog shortly. The EPO and the German government will not publish their views.

Concerning a decision date the FCC couldn’t provide new information. ‘A date for decision has not been scheduled yet.’ As long as Germany hasn't ratified the UPCA, the Unitary Patent system cannot launch.

For regular updates on the Unitary Patent and the Unified Patent Court, subscribe to this blog and the free Kluwer IP Law Newsletter.

Comments (15)

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Concerned observer

January 25, 2018 AT 2:50 PM

It seems to me that BRAK have argued that the UPC is "an organ of the judiciary" ("einem Organ der Judikative"), and that ratification of the UPC Agreement would NOT result in the transfer of jurisdiction to an "intergovernmental body". If I have understood this correctly, does this mean that BRAK view the UPC as being a Benelux-style court common to the EU Member States? I think so – though it is a shame that BRAK does not make a clear and unambiguous statement on the legal status of the UPC. For example, the term "EU" is conspicuously absent from a later statement made by BRAK ("Das EPatG ist ein gemeinsames Gericht der Vertragsmitgliedsstaaten (Art. 1 Abs. 1 ETGÜ)"). That statement is then followed by the carefully-worded conclusion that the UPC is an "intergovernmental institution" (which would seem to cover both a Benelux-style court and an “international” court). Nevertheless, it seems to me that the BVerfG will need to decide whether the UPC is an organ of the German judiciary (that just so happens to also be an organ of the judiciary of other EU Member States) or is instead an international court that is separate from all national judicial structures. If it is the latter, then it is irrefutable that ratification of the UPCA would result in a transfer of sovereignty away from the German courts. As an aside, I am less than impressed with BRAK’s attempt to assert that there is no “transfer of sovereignty” with respect to the UPC being granted exclusive jurisdiction for EPs having unitary effect... on the grounds that the national courts never had jurisdiction for such patents. However, this overlooks the facts that: EP applications that already exist can give rise to EPs having “unitary effect”; and unitary effect can only be requested post-grant. The national courts will have jurisdiction for the pending applications AND (prior to registration of a request for unitary effect) the granted patents. Registration of a request for unitary effect will transfer that jurisdiction to the UPC. Thus, despite BRAK’s assertion to the contrary, there would be a clear transfer of jurisdiction. The provisions of the UPCA provide for this transfer of jurisdiction, and so it is necessary to consider the constitutionality of that transfer for ALL European Patents (including those having unitary effect).

Denis response to Concerned observer

January 25, 2018 AT 8:11 PM

I am no expert in German constitutional law matters. But there is absolutely no doubt that the BRAK submission claims that the UPC is an international court (as you said; see page 16, B.2.A.II.2.c.aa), which will have exclusive jurisdiction due to a transfer of powers from the member states (page 28, C.II.2.b). This follows directly from the discussion at the core of the entire submission: the claimed applicability of Art. 24 instead of Art. 23 (lex specialis) of the constitution. If Art. 23 would be applicable, then the German act would have required a 2/3 majority of the possible votes in the parliament. Art. 24 deals with the transfer of powers to international organizations only, whereas Art. 23 relates to the integration in the EU. Most of the arguments in the submission are based on the assumption that Art. 24 is applicable therefore. In my view, the better arguments speak for Art. 23 instead, but this is barely discussed (pages 14-16, B.2.A.II.2). Since the UPC is an international body under Art. 24, the submission concludes that there is no relation to EU law in the sense of Art. 23 such that there is also no need for a referral to the Court of Justice of the EU (page 28, C.II.1.b.bb). Consequently, the submission is completely silent regarding the issue of referrals of the UPC to the Court of Justice of the EU as well: EU Law simply does not matter for the complaint according to the submission. Consequently, opinion 1/09 of the Court of Justice of the EU is of no relevance and so the submission does not refer to it (the only reference on page 7, A.III.2.a, is due to the fact that it is referenced in the complaint). My impression is that the submission is quite formalistic, selecting arguments in favor of the desired outcome only. There is not much discussion of the pros and cons of many arguments. Especially, if the constitutional court concludes that Art. 23 is applicable, then the entire argumentation of the submission collapses.

Concerned observer response to Denis

January 26, 2018 AT 11:05 AM

Denis, I suspect you are right. My initial thoughts were based in part on the following statement by BRAK: "Es geht damit nicht um die Übertragung von Hoheitsbefugnissen auf zwischenstaatliche Einrichtungen" ("It is NOT a matter of transferring jurisdiction to intergovernmental bodies"). However, it is true that this statement is immediately followed by: "die die Rechte des Bundestages und damit das Demokratieprinzip berühren" ("which affects the rights of the Bundestag and thus the principle of democracy"). It is also true that subsequent statements make it plain that BRAK believe that the UPC is, in fact an "intergovernmental body". From this, I am forced to understand BRAK's initial statement (quoted above) as meaning that jurisdiction is indeed transferred to an intergovernmental body, but that (in BRAK's view) this does not affect the principle of democracy. This leaves me wondering: in what universe does transferring (judicial) rule-making authority to an intergovernmental body that is not subject to any democratic controls (or, indeed, any oversight by democratically-elected officials) NOT affect "the principle of democracy"?

Beat_it

January 26, 2018 AT 8:59 AM

I have not yet read any of the publicized statements as it is clear that they will not deliver the unbiased input hoped for by the court. It should be noted that the BVerfG has already decided that Art. 23 also applies to international organizations supplementing or having close ties to Union law (e. g. decision 2 BvE 4/11, para. 99/100). I wonder how such ties can legitimately be questioned for the UPC with its profound Union law obligations, implemented in the UPCA in the aftermath of Opinion 1/09. Beyond that, the BVerfG has furthermore decided already that Art. 23 also covers the transfer of sovereignty rights to supranational organisations (e. g. decision 2 BvR 2728/13, para. 126). As a consequence, I fail to see how Art. 23 would not be applicable in the present case. The opposing view by BRAK, however, is certainly no surprise and showing what their true mission is.

Peter Parker

January 26, 2018 AT 11:36 AM

I am a rather pragmatic person and not an expert in constituional law, but I nevertheless make a prediction: the German constitutional court will not stop the UPC agreement. The reason for my prediction is the following: every major lobby and interest group as well as the governments of Germany and most European countries are in support of UPC. Further, Mr. Stjerna's complaint seems to be all but a clear cut case, i.e. there appears to be room for the court to make to a decision in either way without clearly and unambiguously breaking the constitution. In other words, it is a matter of interpretation. In addition to that, hardly anyone outside our very small IP echo chamber really cares about it or has strong feelings one way or the other. Accordingly, under these circumstances, I do not believe that the German constitutional court will declare the UPC agreement unconstitutional just because it COULD (but does not have to) to the detriment of all these governments and interest groups.

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