UPCA ratification bill progresses in German Bundestag - Academics: UPC not the best solution for Europe and for innovation
November 20, 2020
(UPDATED) The German draft ratification bill of the Unified Patent Court Agreement will be discussed in the crucial legal committee of the Bundestag next Wednesday.
Image
It will be interesting to see what position the liberal FDP takes in the discussion in the legal committee. As the draft ratification bill needs to be approved with a two-third majority, the votes of this liberal opposition party (which occupies 80 of the 709 seats in the Bundestag) are important. Last month the FDP filed parliamentary questions about the UPCA ratification bill (see this post), focussing mainly on the position of SMEs and the compatibility of the UPCA with the German constitution.
The German government answered the questions last week, stressing the advantages of the Unitary Patent system for European industry and the benefits for SMEs and arguing it has no doubt about the compatibility of the UPCA with German Basic Law or EU legislation: "Die Vereinbarkeit des EPGÜ mit dem Grundgesetz, insbesondere den Grundrechten, sowie mit dem Unionsrecht wurde umfassend geprüft."
The ratification process is the second attempt to complete the formalities leading to full membership of the Unitary Patent system. Earlier this year the German Federal Constitutional Court declared invalid the parliamentary procedure which took place in 2017, because the UPCA ratification bill had been approved in the presence of no more than 35 members of the Bundestag.
The developments in Germany are being followed with great interest, as German support for the UPCA and the Protocol for Provisional Application (under which practical preparations for the new Unified Patent Court can start in full) will trigger the start of the UP system, although two more member states will have to be found to approve the PPA. The case before the Constitutional Court and the Brexit have caused enormous delays, but the German government has always supported the UP system and is keen on completing the ratification procedure as soon as possible.
However, it seems likely that - after the constitutional complaint that was filed in 2017 by patent lawyer Ingve Stjerna - a new constitutional complaint will be filed as soon as the parliamentary procedure is completed, this time by the FFII. Dr. Stjerna has also left open the possibility of filing a new complaint. This could further delay the entry into force of the system, or mean the end of it.
Position paper European academics
Last month, a group of over 30 European practitioners and academics published a position paper and stated "the Unified Patent Court system is not the best solution for Europe and for innovation". They "urge all the decision-makers and persons involved in the process of adjusting the UPCA, following the withdrawal of the United Kingdom, to pause and to consider alternatives solutions".
They "recall that the Unified Patent Court Agreement (UPCA) suffers some substantial deficiencies and constitutes a significant precedent that challenges the democratic and institutional processes in the EU. There is still time to reflect on the implications of these changes and to review the options for a EU patent system that could provide effective support for European innovation."
Ireland
It was somewhat surprising that, despite the uncertainties concerning the UPC, a report appeared this week that Ireland planned to organize a referendum about the membership of the UPCA next year (the report was later adapted). Yesterday a spokesman for the Irish Department of Enterprise, Trade and Employment denied such referendum (required in the case of a transfer of jurisdiction for patent litigation from the Irish courts to a new international court) is imminent. In the Irish Times he said: “When there is greater clarity on the timeframe for the UPCA coming into effect, Ireland will move forward with its own ratification process (…).”
Voices within the Irish business and IP community have argued that Ireland should campaign to host the central pharma division of the UPC, which had been planned in London but which will have to find a new place due to the Brexit. Ireland would be the fourth candidate. Milan has officially announced its ambition to house the London central division, it is rumored that the Netherlands and France are interested in welcoming the division as well.
UPDATE: This article was updated on 21 November 2020 to include the position paper of European academics and practitioners
Become a contributor!
Interested in contributing? Submit your proposal for a blog post now and become a part of our legal community!
Contact Editorial Guidelines
One of those...
: “Die Vereinbarkeit des EPGÜ mit dem Grundgesetz, insbesondere den Grundrechten, sowie mit dem Unionsrecht wurde umfassend geprüft.” Could they publish the result of this examination? Just because the legality has been thoroughly examined does not say anything about the result of this examination.
Rubberduck
UPCA ratification is also on the Bundestag agenda for the second and third deliberations on Thursday next week (item #15, https://www.bundestag.de/resource/blob/473450/ad9836b2695cf011e527e52a1feffe76/Tagesordnung-komplett-kommende-Woche-data.pdf), so no doubt that said Committees' support of the project is guaranteed.
Concerned observer
Well, I think that we can conclude that my powers of prediction are very strong indeed. On 2 November 2020, I stated that: "we can already predict with 100% confidence what the responses will be, namely “Everything is in order. Nothing to see here”. We can also be certain that the responses will amount to nothing more than hand-waving, smoke and mirrors and half truths". Well, the answers provided by the German government match this prediction PRECISELY. My personal favourite is the answer provided in connection with questions regarding the absence of a cost-benefit analysis for the UPC and the possible impact upon SMEs. This is because the government's "excuse" for not conducting any analysis is that they were happy to rely upon two prior “studies” that were conducted ... in 2009! The trouble with this is that, back in 2009, the legislation relating to unitary patents was COMPLETELY different. This is because the flavour of the day back then was the ECPC. That proposed system was struck down by the CJEU as being incompatible with EU law. Thus, unsurprisingly, the provisions of the UPC Agreement look rather different. There is also the matter that neither of the 2009 studies includes anything close to a comprehensive cost-benefit analysis. Thus, the German government's "excuse" for not conducting a full cost-benefit analysis is effectively that other people did some "back of a fag packet" calculations more than a decade ago in connection with a proposed legal system that was really quite different to what we have now. Well, in the face of such compelling reasoning, I am sure that no one will doubt any of the government's other assertions, such as: "The compatibility of the UPCA with the Basic Law, in particular the fundamental rights, as well as with Union law was comprehensively examined"; and "The federal government does not see any further constitutional deficits". I mean, there is no way on earth that these statements could be viewed as being deliberately misleading, right?
MN
May be advisable to await the decision of the Federal Constitutional Court ("Bundesverfassungsgericht") regarding the pending constitutional complaints ("Verfassungsbeschwerden") asserting "insufficient judicial relief against a decision of the Boards of Appeal ("unzureichenden Rechtsschutzes beim Europäischen Patentamt gegen Entscheidungen der Beschwerdekammern"). Widening the competency of the UPC to include in its competency any decision of the European Patent Office (now limited in Art.32(i) UPCA to "decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012") would be one approach to resolve any such constitutional issues. However, the UPCA itself might be deemed to be deficient regarding safeguarding constitutional rights.