UPC: to be or not to be?
January 25, 2021
After BREXIT, ratification and then withdrawal by the UK, a referral to the German Constitutional Court ("Bundesverfassungsgericht") and finally a ratification by its parliament, the UPC project is once again blocked in Germany, as previously before the Bundesverfassungsgericht. Like the phoenix, the project is constantly reborn. But should we resist, or should we surrender? What think of all this?
First of all, the ratification process seems endless, so much so that one wonders about a possible outcome in the long run. Some people no longer believe in it. It is true that this is not the first project and that, since the 1975 Luxembourg Convention, the members of the European Patent Organization have been trying, in vain, to establish a common jurisdiction. Meanwhile, the USA have set up the Court of Appeals for the Federal Circuit ("CAFC") in 1982, which has proved its worth since. So what are we waiting for?
We must admit that UPC project does not seem to arouse an overwhelming enthusiasm in the media and among our governments. A system designed above all by its potential future users with the interlude of the EPO, the unified jurisdiction will not shine for its simplicity or its accessibility. We are notably thinking of the distinction between European and unitary patents and the opt-in/opt-out mechanism. In any case, this is a system designed by some patent users, and which tends, in contrast, to exclude others. Then the cost of the unitary patent will undoubtedly be a powerful disincentive for a number of actors who do not have the means (start-ups, SME-ETI in particular). Not to mention the fact that if companies are mainly involved in the development of the project, it also results in marginalization of the States. Thus, the choice not to make a jurisdiction integrated into the European Union, as with trademarks and designs, is not only regrettable, but also certainly explains the lack of enthusiasm States have shown for relaunching the process (see here). Altogether, the shortcomings of the UPC have been the source of its constant contestation by academics (see here for instance).
But let the reader make no mistake about it. I support UPC. At the same time, I admit finding it difficult to understand why recent events have not been considered as an opportunity to relaunch this project in a more ambitious direction. And, considering the situation in Germany, I believe that France should tackle the issue head on. However, it must be turned into a true European project. We also must plead for Paris to be the epicenter of this jurisdiction. The idea of several central divisions does not make sense, whereas centralization would be logical as much as it would facilitate the functioning of the system. The choice of Paris would be well-founded economically (France is the second largest market in the Europe), historically (France was at the heart of the construction of European Patent Law with the first patent legislation ever and with the Longchambon report long after, and the European office is already located in Germany), and geographically (Paris is a showcase at the center of Europe).
Therefore, in my opinion, defending the UPC will in any case mean recognizing that the project needs to be reformed. But at the very moment when the German authorities are jeopardizing the UPC, France must take its place as European leader in the field of innovation and take the lead: the future of innovation protection in Europe is at stake!
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Bad, bad authorities
"the German authorities are jeopardizing the UPC" Woha, are they? By checking its constitutionality? Really?
NordicObserver
Without, in any way, prentending to be an expert on the UPC, I cannot understand the statement "the German authorities are jeopardizing the UPC". Are the democratic processes not running their due course in Germany at the moment? Reform, perhaps, yes. But isn't evaluation of the project by the BVerfG also a test, that, if passed may lend credibility to the project? And if not, may occasion reform. Also I cannot see how pleading for "Paris as epicenter" turns the UPC in a "true" European Project? From the French perspective perhaps, from the perspective of the rest of Europe perhaps less so?
Anonymous
"We also must plead for Paris to be the epicenter of this jurisdiction. " Sorry, but because of what exactly? So far Paris is not exactly known as an important venue for patent litigation. France does not even have a real patent office (in the sense of actually examining applications and having a large number of examiners). And why should the UPC be created in the "second largest market in the Europe"? Why not the largest? Yes, the UPCA should be completely reworked. No, the UPC should not be based in Paris. Rather it should be in Munich or The Hague, where there is already a critical mass of professionals (forget about market size, the market would after all be the participating countries). To me, choosing court sites because of political reasons and according to practical reasons is emblematic for some of the failures in setting up the UPC. A "clean" and streamlined procedure and organization seem to have been goals with low priority. :-( But I fear nobody will work on a "clean" solution. After all, it would mean creating an EU patent office (without the non-EU members of the EPC). And then setting up a court responsible for appeals against decisions of this EU patent office plus dealing with validity and infringement (possibly even with an administrative law section covering labour law for this office?). - I don't expect to see this happening during my professional life. In summary, it is not "the German authorities [...] jeopardizing the UPC". It was jeopardized by the "authorities" devising a bad agreement without caring for basic legal rules...
MaxDrei
Every lawyer considers his home jurisdiction to be the best. How could he not? The EPC has 38 Member States and presumably every patent lawyer in every one of them "yields to no man" in their contentions that their home jurisdiction is the best. Hence it is no surprise to read now from a French correspondent that: "France must take its place as European leader in the field of innovation" by having the seat of the UPC in Paris. The piece could have been drafted by the EPO's immediate past President, Monsieur Battistelli, also a Frenchman, who, disgracefully, went as far as to cripple the EPO Appeals Directorate in order to give Paris a free run to establish itself as the maker of pan-European patent law. This all illustrates both the beauty and the ugliness of life within the EU. We have the beauty and elegance of the patentability provisions of the EPC and the economy and rigour of the EPC case law written at the EPO. And then we have the demeaning scrabbling for opportunities under the UPC to make pocketfuls of lovely money. Until BREXIT, the UK used to be the Tie-breaker, between Germany and France. it is a tragedy, at least in patent law in Europe, that the UK has left the room. Frankly, for me, the Munich/London/Paris split of the UPC Seat was a plus point. Germany does engineering litigation well. English law fact-finding is good for chem/bio where each side might need to inspect the other side's experimental evidence, and Paris would handle the more intellectual (and hand-waving) "do it on the internet" sort of patent case.
Franco-belge
Full support for the previous comments: constitutional review of laws is part of a democratic state. One can wonder why the BVerfG did not explicitly raise all its concerns in reaction to the first complaint. Incidentally, the Hungarian Constitutional Court has also raised concerns: it seems convenient to forget it. The Benelux countries have a common court that applies national law (identical law passed in the three countries). Maybe this should have served as example.