Unified Patent Court will start operating within a year

If the intention was not to repeat earlier comments in a parallel thread, it seems to have missed its mark.

@ LightBlue Thanks for your comment. If you would have taken the bother to correctly compare the threads you would have realised that you could have kept quite.

It will only hurt if there is a sufficiently independent judiciary that is willing and able to inflict pain. It is perhaps possible that some national courts might object to the fact that the UPC lacks a proper legal basis ... for example on the grounds that, under the Vienna Convention, there is no way to interpret either the UPC Agreement or its Protocols in a manner that glosses over the fact that the UK's participation is mandatory. On the other hand, which national court would have jurisdiction to rule on this point, let alone have the gumption to reach the only logical conclusion? The main problem here is that the key pieces of legislation are international treaties. As we have seen with the EPC, no ruling of a national court will ever be viewed as providing a definitive (and hence binding) interpretation of an international treaty. Further, I have no doubt that the CJEU will dodge any difficult questions by claiming that it has no jurisdiction to rule upon the validity of the UPC Agreement. One might hope that the ECtHR would object to the UPC on the grounds that it lacks lawful judges (as there can be no lawful judge if the treaties underpinning the UPC lack a proper legal basis). However, when it comes to dealing with (other) international bodies, it seems that the ECtHR is always inclined to overlook even the most obvious of problems ... for example as illustrated by the failure of the case filed by SUEPO (subsequent to the appalling decision of the Dutch Supreme Court) alleging breaches of fundamental rights by EPO management. In essence, when it comes to international treaties, it seems to me that there is only ever as much adherence to the rule of law as the participating states can be bothered to enforce. If the UPC's supporters get their way, the judges of the UPC will be starting off from the terrible position of being forced to overlook the lack of proper legal basis for the legislation upon which the UPC is based. Given such a start, as well as other obvious (governance) flaws in that legislation, it seems somewhat unlikely that the various divisions of the UPC will end up operating in a manner that companies (and the general public) in Europe find to be entirely unproblematic. For a sense of perspective, the governance flaws in EPC1973 and EPC2000 were much less obvious ... and yet we are now in a situation where there is clear evidence of problems (to say the least!) with the management of the EPO, as well as of a lack of independence of the Boards of Appeal. This is not to say that the situation is hopeless, it is just that knowing the correct interpretation of an international treaty is of no use when one is faced with a political will to proceed based upon an incorrect interpretation. The challenge in such a situation is to find an effective way to restore sanity. And if you find such a way, please do let me know!

The BVerfG in its latest decision stated, that the question of UK-participiation can not be constitutionally reviewed. Instead they said it is subject to "normal" interpretation of the treaty. To me this sounded like a pointer to the EuCJ, doesn't it?