Preparatory Committee: The Unitary Patent system can be functional in a near future
September 11, 2020
The Unitary Patent system can start in the near future. That is one of the conclusions of a meeting held yesterday by the Preparatory Committee of the Unified Patent Court.
According to a press release, on the agenda were “issues triggered by the recent events in Germany and the United Kingdom. The Committee took note of the good progress being made in Germany with regard to the legislation needed for the German ratification of the Unified Patent Court Agreement and the Protocol on Provisional Application.
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The meeting, the first since March 2017, was 100% digital due to the corona pandemic and travel restrictions. According to the Preparatory Committee, it set “a good precedent for the future working of the UPC as a digital court”.
Last July, the UK withdrew its ratification of the Unified Patent Court Agreement as a consequence of the Brexit. The secretariat of the European Council has since updated the list with UPCA ratifications and the list with signatories of the Protocol to the Agreement on a Unified Patent Court on provisional application (PPA)
Germany however wants to proceed with the project. Its government presented a new draft bill for ratification of the UPCA in June, just months after the German Constitutional Court had declared void the first ratification procedure because the UPCA ratification bill hadn’t been approved by a two-thirds majority. Minister of Justice and Consumer Protection, Christine Lambrecht stated she wanted to continue working to ensure “we can provide the European innovative industry with a Unitary Patent and a Unified Patent Court”, despite broad criticism of uncertainties concerning the UP system.
Some observers think the German ratification procedure may be completed as soon as this year. Interesting, in this respect, is a report of the Italian Ministry of Foreign Affairs, elaborating on the redistribution of the competence of the London branch of the central division of the UPCA. According to the report, the Preparatory Committee "confirmed the willingness of the participating States to ensure the entry into force of the UPC as soon as the ratification process is completed, and hopefully already in early 2021.
In order to allow this, it approved a provisional redistribution of the competence of the London office between the existing offices in Paris and Munich, provided, however, that this is a short-term solution, pending the entry into force of the Agreement and that Italy can start, in agreement with the other signatory States, the procedure for amending the Agreement to include Milan as the third seat of the central Court division."
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Concerned observer
Errr... are we not ignoring rather insurmountable problems with the "Entry into force" provisions of the Protocols, such as Article 3(1) of the PAP: This Protocol shall enter into force the day after 13 Signatory States of the Agreement on a Unified Patent Court including Germany, France and the UNITED KINGDOM, have either ratified, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court and have a. signed in accordance with Article 2(2)a. or signed, and ratified, accepted or approved this Protocol in accordance with Article 2(2)b.; or b. declared by means of a unilateral declaration or in any other manner that they consider themselves bound by the provisional application of the articles of the Unified Patent Court Agreement mentioned under Article 1 of this Protocol. The UK is still a "Negotiating State" in the sense of Article 1(e) of the VCLT. The UK has not given its agreement for the international treaties whose texts it took part in drawing up and adopting (the UPCA and the two associated protocols) to enter into force. Thus, in addition to entry into force now being contrary to a literal reading of the relevant provisions of the Agreement and Protocols, there would appear to be no basis for entry into force under Article 24 VCLT. It seems that the UK is not alone in being prepared to break international law!
Jan Verbist
In the Italian announcement "Announcement of Milan candidacy to the seat of the UPC": https://www.esteri.it/mae/en/sala_stampa/archivionotizie/comunicati/annuncio-della-candidatura-di-milano-a-sede-del-tub.html "it [the Preparatory Committee] approved a provisional redistribution of the competence of the London office between the existing offices in Paris and Munich" The Preparatory Committee does not have the competence to distribute tasks from London to Paris+Munich. This is not legal. And Italians are being screwed, as a promise to have the seat in Milan after the UPC enters into force is not legally binding.
Disenfranchised
The approach is also narrow-minded. The Court is not something just to be divided up for political favours. That happened with Cameron in 2013 but only because there was no other way and look where that got us. The UPC needs amending (should have been amended 4 years ago) to recognise the Central Division as having a single seat (with freedom to delegate workload as required to local divisions) and remove the ridiculous Annex II. It should also reflect the post Covid reality that we hope to see - time for the first true CyberCourt.
Astonished
Thank you Concerned Observer, my thoughts were also: Why make a fuss about the "Internal Market Bill" and then go on and break international law...?!? If - with the existing agreements - the UPC is started, it will be fun to see the first case tried in Milan go to the EuCJ because of the wrong venue (this gives a new meaning to "forum non conveniens" ;-) ). But I don't see a start of the UPC soon, the BVerfG mor or less invited new constitutional complaints, so I guess it will take some more years to resolve the open questions, assuming this is at all possible. With the mess made out of the UPC agreement, it would be best to completely scrap it and start from scratch - without interested litigators during the drafting.
MaxDrei
The post from "Astonished" puts its finger on the problem: who today shall draft new legislation, if not the powerful lobby interests (here, the international patent litigation industry)? The days are long gone, when draft legislation was written by a public office (such as, in the UK, the "Parliamentary Draftsman") with provisions carefully crafted to coincide with "the public interest" or the "general welfare" of society. Today, nobody knows any longer what that is (or if they do, the lobbyists immediately render it invisible).