German draft UPC ratification bill in parliament, chance of new constitutional challenges

There is a real and material opportunity that Germany would sack the ratification, so Europe can finally get a proper patent court as envisaged by the Eurpean Treaties. The Unitary Patent Court was ruined by the British, without recourse to the EUCJ. It makes no sense to ride this dead horse to ratification, a Court that one days should be established in London, while the Brexit-UK in their hatered against anything European abandonned participation. Europe deserves a proper community patent and a proper community patent court and an EU patent office. For a community patent a simple directive or regulation would suffice, no need to wait ten years for ratification of a badly designed court and its training platforms for non-judge-judges without eligibility to a office of a judge and the strange construction of bribes to the existing institutions.

FFII and its President threaten to submit constitutional complaints from time to time, see 2017: https://twitter.com/zoobab/status/874332456224161792 Nothing to really worry about.

You would think that, by now, politicians would be sophisticated enough to assess sceptically what the professional lobbyists are telling them, especially when it is over an issue where financial self-interest plays such a dominant role. Was it not in Ancient Rome that the maxim Cui Bono was the first enquiry to be made? These days , what we should do is to "Follow the Money". Pushing for the UPC is a relatively small number of well-funded itinerant and international players who are adept in the use of lobbying power. On the other side is a much larger circle of small and medium-sized European users of the patent system, users for whom lobbying in Brussels or Berlin is as alien as Life on Mars. The fact that the petition to the BGH was NOT put together by a powerful player, and that Brussels and Berlin have no feeling of being harangued by opponents of the UPC, does NOT mean that the arguments are all in favour of the UPC, nor that the UPC (as presently constituted) is a good thing for society, the economy, innovation and the general welfare. UK government minister Michael Gove notoriously averred (in the context of the BREXIT Referendum) that the people think they have by now heard quite enough, thank you, from experts. I hope that politicians and their senior civil servants in Berlin and Brussels still want to hear from the experts, on the question whether the UPC will do, in reality, what its proponents are boasting it will do. In my opinion, as a European patent attorney with clients in Europe, Asia and North America, it won't.

I can only but agree with Max Drei! Ratifying the UPCA in its present state is a receipt for disaster. But as Max Drei says, follow the money. The UK has only sent a “Note Verbale” to the Commission. I am not acquainted with international constitutional law, but I would not consider that it is a proper withdrawal under the Vienna Convention of the Law of Treaties (VCLT). The UPCA has not even provisionally entered into force in order to allow Art 25(2) VCLT to be applied. The vague statement of the UPC Preparatory Committee about the reallocation of the duties foreseen for the London Section of the Central Division has, in my humble opinion, no standing with respect to the VCLT. It is certainly not a common declaration off all contracting states under Art 33(1) VCLT. Starting the UPC without having amended Art 7(2) UPCA and the annex which is part of the UPCA defining the classes to be dealt with in London is putting the head in the sand and ignoring reality. Banking on Art 87 UPCA to amend Art 7(2) UPCA after its entry into force is defying any common and legal sense. I take bets that Italy which is poised to take over the duties of the London Section will not allow this to happen. Any party seeking help from a judicial system should be heard by the legal judge foreseen. As there will be no legal judge in London, this condition is not fulfilled. This could be a problem for the FCC if a new complaint is filed. The UPC is bad for European SMEs, see the article of Mr Xenos "The Impact of the European Patent System on SMEs and National States and the Advent of Unitary Patent", published in Prometheus, Vol. 36, No. 1 (March 2020), S. 51-68. As most of the patents granted by the EPO are held by non-EU member states, where is the interest for EU industry to launch the UPC? It is giving those non-EU member states a single entry point to challenge European Industry. I do not see this as being beneficial. The UPCA is pushed by the big industry and their lawyers. The latter expect to get a lot of money. Both are intensely lobbying in favour of the UPCA. European SMEs are the fig leave behind which the lobbyists are hiding. Further to the problem of the legal judge, there is still the problem of the primacy of EU law raised on its own volition by the FCC. The FCC has dismissed the problem of the designation or removal of a judge, but this is not correct. How can a court be trusted if a judge can be removed from its duties without offering him any means of redress? The RoP of the UPC reach very far into the legal systems of the Contracting States, but have never been checked, not even by the Commission! It interesting to note that one of the greatest lobbyists for the UPC, Mr Tilmann has published in GRUR Int. 2020, 847 an interesting article on “The UPC without the UK: Consequences and Alternatives”. In Part II of his article Mr Tilmann claims that UK was a difficult partner from the start, which can even be held responsible for the fact that all the efforts for creating a “Community Patent” were torpedoed by the UK. He also considers that UK will lose out, but this is an acquired fact. But where is the attractivity of the UPC without the UK? The UPCA as not being common to all EU member states will simply add another layer of case law, but for what is this good? This case law can even be in contradiction with the case law of the boards of appeal of the EPO, and especially its enlarged board of appeal. On the other hand with the “dynamic interpretation” started in G 3/19, this problem could be resolved, but then, what about legal certainty? In Part III of his article, Mr Tilmann mentions “Alternatives to continuing?” and especially the “Incorporation into the CJEU court system” of a litigation system, but in order to immediately dismiss it in favour of the UPC. The reasons for the dismissal are the following: “Opposition to this centralistic structure was voiced from all sides at the time. The proposal was unanimously rejected by industry, lawyers and judges, not only but mainly because of the rigorous centralisation excluding local and regional divisions in EU Member States. Europe's big competitors, the US and China, have decentralised first instance courts for patent cases”. This is not a convincing reason at all. If subsidiarity is to be reached, this is attained by the present legal system as the number of truly supranational litigations is very low. This is comforted by the fact that the average number of validations in EU member states is at best between 5 and 7. Why do we need a system for 20+ states? It would be much more efficient to have increased meetings of judges dealing with European patents in the member states of the EPC. I claim that the common EU IP court was primarily rejected by lawyers as it would certainly not be tailored to their financial needs and their influence on the rules of proceedings would be greatly reduced, contrary to what happened for the UPC. Moreover such a court with judgements valid in all EU member states would require unanimity which cannot be reached at this level as some EU members states have either not signed (Spain) or will not ratify (Poland and the Czech Republic) as it is bad for their industry. There is a way different of the “reinforced cooperation”, which would avoid another layer of case law not valid for all EU member states, but this way would not be to the liking of the UPC lobbyists.

Let's pick up on what Andre writes. Now that the British are gone, is that an opportunity to craft a better UPC? The EPC is the world's best law of patent validity precisely because it was a fusion (in 1973) of all the best in the two rival systems of Law in the world, civil law and English common law. In following the Rule of Law, Europe is a beacon of light for the rest of the world. If Europe is fit for the future, it ought to be able to create an EU-wide system of patent dispute adjudication that is an example to the world. Let's face it, for validity, there is nothing better imaginable than what we have already at the EPO. But the proponents of the UPC, the big international law firms, don't like it because their share of that particular "cake" is far too small for their liking. Compared with the enquiry into validity, that into infringement is far less time-consuming (and so less attractive to the proponents). However, if the pols in Brussels and Berlin and Paris and The Hague truly want a functional patent dispute system for the EU, let them set up local infringement courts and let everything go up eventually to the CJEU. One would hope though, that the CJEU would hold itself back from wrecking the established (and enormously persuasive) jurisprudence of the Boards of Appeal of the EPO. What does the Republic of Ireland think? After all, its courts run under English law and Ireland is full of American companies. Does Ireland want a UPC even after the departure of the UK? Should we ask it?