Munich and Paris will divide competencies London seat Unified Patent Court, no Milan (yet?)
May 16, 2023
The Unified Patent Court has formally announced that, for the time being, competencies which were originally assigned to the London seat of the UPC central division, will be divided between Munich and Paris. Remarkably, there is no mention of Milan as third seat of the central division.
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As the UPC writes today: ‘In its meeting of 8 May 2023, the Presidium of the Unified Patent Court decided that, as from 1 June 2023, actions pending before the central division related to patents in IPC section (A) shall be assigned to the seat in Paris while actions related to patents in IPC section (C) shall be assigned to the section in Munich.
The wording of Article 7(2) of the UPC Agreement provides that actions pending before the central division related to these two IPC sections shall be assigned to a section to be located in London. However, after the United Kingdom withdrew its ratification of the Agreement on a Unified Patent Court on 20 July 2020, the Preparatory Committee interpreted Article 7(2) of the UPCA and Annex II thereof, with regard to the allocation of cases to a section of the Central Division in London as having no effect and that the competence for these cases can be dealt with provisionally until a final decision is taken on the creation of another section of the central division. Having also taken into consideration that the Administrative Committee has not yet reached such a final decision and the Agreement will enter into force on 1 June 2023, the Presidium has exercised its managerial power under Article 15(3) of the Statute of the Unified Patent Court in the aforementioned sense.’
Apparently the negotiations over the third seat of the central division have turned out to be more difficult than expected. Since March, various sources have reported that there was an agreement that Milan could replace London, but only if it was willing to leave a considerable share of the London competencies to Munich and Paris. Munich claimed the chemistry and metallurgy cases and Paris wanted jurisdiction over pharmaceutical patents with SPCs – at least 90% of the drugs that have been successful on the market.
In Italy however, restricting the competencies of a Milan central division seat was called unacceptable. Industry and legal representatives sent an open letter to MP Giancarlo Giorgetti, the Italian minister of economy and finance, about the issue. And late April, Minister of justice Carlo Nordio said Italy would not give in. According to a sib.it report, he declared that the resistance ‘against transferring to Milan all the competencies originally assigned to London is strong (…)’, but ‘that he and his team intend to stand their ground just as vigorously.’
The UPC’s announcement of today clearly shows that it has been impossible so far to find a solution which is acceptable to all parties. So for now actions related to patents in the ‘London’ IPC sections (A – human necessities) and (C – chemistry and metallurgy) will go to Paris and Munich, respectively.
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Simona Fonzi
"the Presidium has exercised its managerial power under Article 15(3) of the Statute of the Unified Patent Court" The german president is the new law maker.
Patent robot
Just a few questions for the PUP (Pro-UPC Party): 1. "the Preparatory Committee interpreted Article 7(2) of the UPCA and Annex II thereof": under which legal basis can the Preparatory Committee interpret the UPCA? 2. "the allocation of cases to a section of the Central Division in London as having no effect": under which legal basis has this allocation no effect? Brexit cannot be a reason, since the EU could still have (and it has) diplomatic offices in London. 3. "the competence for these cases can be dealt with provisionally": under which legal basis can the competences of the UPC sections be provisionally changed? 4. "the Presidium has exercised its managerial power": is the Presidium legally valid? The PPA cannot be in force since the UK withdrew its ratification. 5. "the Presidium has exercised its managerial power under Article 15(3) of the Statute": does this "managerial power" include decisions on the interpretation of the UPCA?
Concerned observer
Ouch! The fact that it has proven impossible for the Participating Member States to reach agreement on a new location illustrates precisely why those Member States never gave, nor ever intended to give, the AC the power to pick a new location for a branch of the central division, or to reallocate cases from one branch to another (or others). It will be interesting to see how this plays out in court. This is because I doubt that I will be alone in viewing the legal basis for the reallocation of cases as being conspicuous by its absence.
Der Nörgler
Hard to see the basis for this in Art. 15(3) of the Statute: "3. The Presidium shall be responsible for the management of the Court and shall in particular: (a) draw up proposals for the amendment of the Rules of Procedure in accordance with Article 41 of the Agreement and proposals regarding the Financial Regulations of the Court; (b) prepare the annual budget, the annual accounts and the annual report of the Court and submit them to the Budget Committee; (c) establish the guidelines for the training programme for judges and supervise the implementation thereof; (d) take decisions on the appointment and removal of the Registrar and the Deputy-Registrar; (e) lay down the rules governing the Registry including the sub-registries; (f) give an opinion in accordance with Article 83(5) of the Agreement." If a party challenges the allocation of a case to Paris/Munich (and lets face it, someone will), it will surely also raise the question of whether the judges of the Presidium have to be recused from hearing that case. Could get messy.