German legislation for ratification Unified Patent Court Agreement enters into force

It is nice to consider that the ratification by Germany is a step forward towards the UPC. I however consider that the ratification has been acquired fraudulently because the members of Bundestag and Bundesrat have been misled by the Ministry of Justice in the explanatory not annexed to the new ratification bill. When you compare the accompanying note with an article published in GRUR Int. by Mr Tilmann with the actual content of said explanatory note, it can easily be seen who held the hand of the civil servants in the ministry. The problem of Art 7(2) UPCA has been dodged in this accompanying note as in the ratified agreement London is still expressis verbis mentioned as section of the central division. As the wording is crystal clear, Art 31 and 32 VCLT cannot allow a different interpretation, even a “dynamic” one. Trying to "provisionally" transfer the duties allotted to London to Paris and/or Munich, will encounter resistance from Italy, The Netherlands and lately Ireland which all want to see the London Section coming to them. It appears rather naïve to think that those countries will nod in approbation to the “provisional” transfer to Paris or Munich. But this is what has been suggested to the German MPs! The Brexit "gift only exists in the vivid imagination of some lawyers. If the notion of rightful judge has any meaning, simply ignoring Annex II of the UPCA defining the IPC classes to be dealt with in London (A, C), Paris (B, D, E, G, H) and Munich (F) is a no-go. A "provisional" allocation to Paris/Munich and a later transfer under Art 87(2) UPCA does not appear to have a legal basis as Art 87(2) has a totally different purpose. Art 87(2) only allows an administrative alignment of the UPCA with international treaties on patents and with Union law once all the member states of the UPCA have already adopted the corresponding rules in their national legal system. It remains a mystery how this alignment to existing legal requirements can authorise, first a “provisional” transfer of the duties allotted to London and afterwards the “final” transfer to another country. This is the opinion of the proponents of the UPCA, but the explanation given here shows that it is a legal opinion without any substance. The only way to deal with the problem of Art 7(2) UPCA would be to renegotiate said Art, but this would mean at least a partial, if not a full ratification of the amended UPCA. The proponents of the UPCA know too well that this would be the end of their dreams. I also wonder how a treaty establishing a jurisdiction in which supremacy of Union Law is expressed can be in conformity with the latter, when a UPC judge can be removed from office by the presidium of the UPC without offering him a possibility of redress. See Art 10 of the Statute of the court which is part of the UPCA. Due to the British influence, it was envisaged that part-time judges could be sit at the UPC. This seems to be a specificity of the English legal system. On the continent this notion is unknown, at least when it comes to decide finally on the fate of assets in civil jurisdictions. How can the notion of part-time judge be in conformity with constitutional rights in the remaining member states of the UPCA? As far as the two protocols are at stake, it should be remembered that the UK is still mentioned as necessary country to adopt them before they can enter into force. What is going on here is willingly ignoring the terms of a legally signed and ratified international agreement. Nobody had expected Brexit, but Brexit is a reality and trying to deal with the difficulties thus created in such an illegal manner is simply opening the door to a legal jungle. This is not the kind of European integration I want to see. I want however to make one thing clear: I am not at all against European integration, on the contrary. But I have not yet seen any convincing or compelling reasons why the UP/UPCA system will bring it. If it would be for all EU member states then why not? But it is not the case! Why have Poland and the Czech Republic signed but will not ratify the UPCA? When it is claimed that the translation problem is solved by the UP/UPCA system just have look at the language regimen in the rules of procedure. It is a nightmare, as only before the central section the language of the proceedings will be the language in which the EP/UP was granted. Furthermore, any costs for simultaneous interpretation will be costs of the case and the losing party will have to foot this bill as well. Even if they are ceilings foreseen for SMEs, it is difficult to see how they will be able to cope with such a burden. Only the simultaneous interpretation costs for the panel will be borne by the UPC. One can also ask questions whether the language regimen for obtaining a UP is in conformity with the London protocol. When it is claimed that a UP is cheaper than an EP, apples and pears are compared. The average number of validations for an EP in EU member states is between 3 and 5. It is only if all the fees for all EU member states are totted up, that it is cheaper. But in view of the average number of validations this cannot be the case! Last but not least, when you know that barely 30% of patents granted by the EPO belong to EU proprietors, I have difficulty in understanding why the UP/UPCA system is good for European industry in general and European SMEs in particular. It is thus legitimate to ask which industry will benefit from the UP/UPCA system, and especially which profession will be allowed to fill its already deep pockets. Knowing what national litigation costs, I dare imagine the costs in case of a supra-national litigation. When on top you see that the basic fee for infringement (11 000 €) is nearly half that for an action on nullity (20 000€) it becomes abundantly clear which party is directly favoured in case of litigation. As the above considerations can be seen as a resumé of various posts on LinkedIn, I have decided to publish them under my name.