To be viable the fees have been set at a level which does not allow SMEs to use it, but they would be under the permanent threat of the big industry. This is because the German Constitutional Court asked him to wait until they decide before executing the UPC law. Hopefully attempts at reform will continue, but that is likely a matter for the next generation, not mine…. Clear is one thing, IF the GFCC decides, the new law conforms to the constitution, then the president has to sign. 20 July 2020. is a freelance journalist and editor, based in London, United Kingdom. Make an appointment with us . Simply claiming, and this in blatant contradiction with the Vienna Convention on the Law of treaties, that the duties of the London Section can be provisionally transferred to Paris and Munich, was setting off a time bomb. In a decision published today, the German Federal Constitutional Court … If the UPC package is too hard to swallow, then why doesn’t Europe break it down into parts and swallow the easy bits first. Why? The CJEU did not declare the EPLA unlawful, but rather considered a very different agreement. If only one of these satisfies the court, the complaint is fully granted. It’s as if you completely missed the point of my post at 6, and want to ONLY see what you have already seen (function of pan-European litigation outfits) and ignore the reality that MANY different forces are at work in our world. The annulment of Germany’s ratification of the Unified Patent Court Agreement has dealt the proposed system another serious blow following the UK’s recent decision not to take part because of Brexit. 26 November 2020. It is thus an illusion to state that the judge who was meant to sit in London can be replaced by a judge sitting in Paris or Munich. Der Bundespräsident muss auch einen politischen Gegner zum Bundeskanzler ernennen, wenn dieser gewählt wird und darf nicht die Ausfertigung von Gesetzen verweigern, weil er sie für politisch schädlich hält. Unified Patent Court German ratification of UPC on hold. in opposition proceedings when the patent has lapsed or was redrawn, the declaration to not sue the opponent for infringment in the past). Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. §93d of the Bundesverfassungsgerichtsgesetz. It is surprising that people of this kind, actually all learned lawyers, some of them even holding the grade of Professor, e.g. Politicians in mainland Europe have grown fond, in recent years, of the saying “Where there’s a will, there’s a way”. The question of translations was and still is a source of revenues for firms of representatives. A current report of the press agency dpa awakens the hope for the European Patent Court. Let’s face it, the UPC is no more than a further source of profit for internationally active litigation firms helping the big industry. In order for it to come into force, it must still be approved by Germany. The Unified Patent Court (UPC) – structure, staffing and instances. Federal Constitutional Court - decision. The only effect of the cancelation of the first ratification bill was that this time the quorum was achieved, but nothing more. The German constitutional challenge was brought by Düsseldorf lawyer Dr. Ingve Stjerna on several grounds. I am struck by how much commentary there has been on how, in Germany, the FCC and the Bundespräsident together handle scenarios in which the FCC would like more time to consider whether a constitutional complaint has merit. The EU regulations establishing the Unitary Patent system (No 1257/2012 and No 1260/2012) entered into force on 20 January 2013, but they will only apply as from the date of entry into force of the UPC Agreement, that is, on the first day of the fourth month following the deposit of the 13th instrument of ratification or accession (provided those of the three Member States in which the highest number of … Several of these do align. The Agreement on a Unified Patent Court establishes the court as a court of the member states. Here, we are told, the given reason is because “two complaints have been filed”. The explanatory note for the new ratification bill expresses no more than the wishes of the lawyers lobbying for a quick start of the UPC, as they expect to fill their pockets. The goal of bringing the Unified Patent Court into operation moves an important step closer this evening with the news from Germany that the Bundestag has voted on and approved the legislation for the Agreement on the Unified Patent Court and its Protocol on the provisional application. In its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority. To those who are concerned about the democratic legitimacy (and potential for abuse) of the “gentleman’s agreement” between the FCC and the Bundespräsident, I would merely point out that there are other areas where the grounds for concern are MUCH greater… for example, the provisions of the UPC Agreement (for reasons elucidated in the 2017 complaint) or the “dynamic” interpretation standard adopted by the EBA in G 3/19 (which has been rightly criticised for undermining democratic legitimacy and the separation of powers). I have to (readily) disagree with your assessment as to what is ‘THE’ hard question in substantive patent law. Thanks for the article James. Sign In To Set a Search Alert . The arrival of the Unitary Patent (UP) and the Unified Patent Court (UPC) could be delayed following a request from the German Federal Constitutional Court to the German Federal President to hold off on signing the instruments of ratification of the UPC Agreement until … The next thing to look out for is probably a statement from the German government about what they plan to do, but with everything else going on in the world at the moment I doubt this will be a priority. Judges in Germany have dealt what may be a fatal blow to the project to create a Unified Patent Court (UPC) in Europe. London EC4Y 0DH. Once the German ratification procedure is complete, it's anticipated that the final preparatory steps could be taken to set up the Unitary Patent Court in 2021. Let us distinguish between matters of law and matters of fact, and talk about how different jurisdictions have different ways to establish the facts. [Dimmer brothers are sometimes jealous]. Please read the full decision. You again appear to want everyone else to wear your spectacles because they correct your vision, and this anyone else in need of vision assistance would benefit from your spectacles. The Unified Patent Court and Unitary Patent Package has received another hit. By signing an international treaty with the UK as signatory, Germany is ignoring Brexit, and will violate EU law. Preliminary injunctions cannot be used for a law that has not been passed. In Germany, the UPC bill will now be submitted to the German upper house (Bundesrat) for approval later this year. Margaret Thatcher was very much in favour. Brexit Britain changes its mind, says non, nein, no to Europe's unified patent court – potentially sealing its fate UK.gov decision to back out of UPC smacks of ideology over commonsense. Analysis The UK has formally ditched the Unified Patent Court (UPC), a project to create a single pan-European patent system that would fix the confusing mess of contradictory laws currently in place. The Unitary Patent system is inextricably linked to the creation of the Unified Patent Court, which will have jurisdiction over Unitary Patents and "classic" European patents. From Juracademy – Bundespräsident: The start of the new system is currently expected for the beginning of 2022. However, in the case of the Unified Patent and the Unified Patent Court it is ultimately a matter of the transfer of sovereign rights – and this has constitutional relevance, the Federal Constitutional Court explained. That is, unless and until the UPC becomes a fait accompli, there remains a chance that the FCC could make it impossible for Germany to ever ratify the UPC Agreement (for example, by reviving and then deciding upon the point discussed in paragraph 166 of the ruling on the 2017 complaint). R 109(5) UPCA The likelihood therefore is that this represents the end of the UPC project, or at least a lengthy delay. IPT Germany. See all news . Copy +Comment The UK government will now not join Europe’s new Unified Patent Court (UPC) despite promising only last year … This applies only to specific cases, but not to the law-making process. An initial proposal, which shared many similarities with the proposed European Patent Litigation Agreement and included non-EU countries, was found to be incompatible with EU law by the Court of Justice of the European Union, as it would lead to a court not falling fully within th… There is no accountability whatsoever and we, “the people” do not even really know if what is said by the handful of persons involved is true. Your email address will not be published. Good analysis of the legal situation. 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However, it is another question entirely whether I will have the stomach to endure the endless rounds of fantastical (and nakedly self-serving) arguments that will be generated to this end. Unitary Patent & Unified Patent Court / Webinar. However a possible positive effect of “Patent translate” would then be to render Art 65EPC obsolete, and hence “extend” the London agreement to all EPC member states. The first constitutional complaint against UPCA ratification in Germany was filed in March 2017. To their big disappointment, the FCC accepted that a patent granted in one official language of the EPO can be valid in France even if it is not translated into French. legal-patent… the Adenauer Fernsehen Case, where the Bundesregierung actively did something likely illegal, and the court said “stop until we decide”. Once the law has been passed, the court could issue a preliminary injunction to not apply the law to the executive, but not against the judicative. For our British friends: how does it compare with the UK? Perhaps the UK and Switzerland (who were the main proponents of the EPLA/EPLC system) and other non-EU EPC countries should now set up their own common patent court system and leave the EU countries to make do with their purely national litigation systems. However, there must be some doubt in the current climate about whether (and when) the German government will be willing to bring forward another Act, whether it would secure the two-thirds majority, and – even if it did – whether another complaint would be brought. The Federal Constitutional Court has published its list of decisions for 2019. […] with the departure of the UK from the EU and the Unitary Patent project, which […] has made the UP and UPC less attractive for the industry. The Unified Patent Court (UPC) bill will now be submitted to the German upper house (Bundesrat) for approval, and it is envisaged that this will take place in the final months of 2020. Other points, like the independence of the judges and their designation have been dismissed as not being sufficiently substantiated. A reply for the UPC member states is however easy as it can be brought in direct relation with the number of validations in their member states. Very briefly: Pros = unitary patent would reduce translation costs making patents more accessible to small companies. Unified Patent Court Germany hastens second ratification of Unified Patent Court. On the other hand I have to acknowledge your perseverance with trying to pursue a project which is as useful as trying to sell a bra to a policeman. FEDERAL CONSTITUTIONAL COURT - Decision. The Preparatory Committee of the Unified Patent Court has re-opened its judicial recruitment programme. At IPWatchdog.com our focus is on the business, policy and substance of patents and other forms of intellectual property. The FCC has now confirmed to journalists that the FCC has asked the Federal President not to sign the bill into law. My sense of this decision is that it is the FCC recognising this reality and quietly and unostentatiously putting the UPCA to sleep. ‘No Unified Patent Court For Us’, Says UK Government But then lawyers would not be able to increase their profits. 82 Abs. But I’m right with you there as, I think, should be every self-respecting and upright lawyer or patent attorney. Three of the eight judges dissented from the decision, which can be read (in German) here. I would suggest that you stop trying to take people for a ride and start engaging in a truthful and open-minded discussion instead of pushing shallow propaganda. A weathercock would not act differently….. You still would like to see a kind of EPLA “light” limited to non-EU member states to emerge. And that, by itself is enough? The next step could be an international convention governing the conditions under which an EP patent is considered to be infringed (and the remedies available for infringement). And Germany declared that this should happen 2020. Is this ‘fixable’ by merely taking a proper vote? Will the project be relaunched soon by a new vote of the German Bundestag? I would thus go as far as claiming that the way of obtaining a UP is in contradiction. E.g. I write to support Peter Parker’s accountability point. Well, the important point here is reall, that once the treaty is ratified, there is no (easy) way back, should the BVerfG find the UPC not compatible with the GG – as compared to “domestic” laws, which the court can always suspend/strike. As the GFCC had a good reason to repel the ratification bill, it was not necessary for it to go much into detail with other reasons. The whole situation was complicated further when the German Constitutional Court ruled in March that the nation's ratification of the UPC was unconstitutional – the way the German parliament had approved the patent court, back in 2017, was insufficiently representative. 2015 – The year of the patent trolls? Stay informed on Intellectual Property law & developments. These are just a few of the arguments…. So it was easy for the proponents of the UPC to come up with wonderful verbiage about further European integration and usefulness of the system for SMEs. As you say: WELL DONE GERMANY. The news has ignited rumo ... 5 June 2019 by Mathieu Klos; Opinion Signs of life: UPC constitutional complaint . As to ‘best way,’ that’s an unproven assertion, and one that is not so amenable to a ‘just do it’ admonition, given as different Sovereigns do not even have a uniform approach to how to use the juristic fictional person of the Person Having Ordinary Skill In The Art. The easiest part for the EPC member states to swallow ought to be reducing the costs associated with the translations required to validate EP patents. I know, in todays world the concept of “courtesy” seems outdated (at least to some presidents ). The FCC has declared that the Parliamentary Act of Approval to the Agreement on a Unified Patent Court to confer sovereign powers on the Unified Patent Court is void on the ground that the German … Nevertheless, there is a lot of prejudice (still) against the EPO way to do obviousness. Competition is often a force for good. But now there is a real prospect that the Bundestag will pass the legislation this year. Forgive me if I am wrong, but I do not recall seeing any complaints on those points from the commentators who are now seemingly so concerned about fundamental issues underpinning the rule of law. There is no procedure foreseen to stop the law making process by the constitutional court, the only way is to kindly ask the federal president to not sign the law yet. What if this were a law where time is of the essence? This is a matter of regret since it was not what most of industry wanted. I am only wondering, how the GFCC can stop a legislative project by simply calling the Federal President. The Act of Approval was passed unanimously by the Second Chamber of the Bundestag but only about 35 members were present. Richard Pinckney, German UPC ratification on hold . Brexit has created a problem for the UPC and Europe needs to face up to that and solve it in a workmanlike way. German Constitutional Court Recruitment for UPC judges raises new speculation. Even if the BVerfG dismisses these complaints, or upholds them in such a way as to permit a further attempt to ratify, surely the delay is going to do terminal damage to this attempt at a common patent and court system? The “Not Invented Here” syndrome, I believe. Breaking Down Moderna’s COVID-19 Patent Pledge: Why Did They Do It? German law makers voted to pass legislation in early 2017 to ratify the UPC Agreement, an international treaty that provides for the establishment of a new UPC system – that is a multi-jurisdictional judicial … The Court said that a two-thirds majority of the Bundestag was required. The Unitary Patent and the Unified Patent Court are the building blocks which will supplement and strengthen the existing centralised European patent granting system. An EU patent (to complement the already up and running EU RTM and Reg Des regime) would help towards that objective. Point 106 in the decision of March 2020, has been completely ignored in the explanatory note of the ratification bill. Cancel. This interpretation goes manifestly not only against the German Constitution, but also against the European Convention on Human rights. The law was approved unanimously, so achieving the two-thirds majority required for a transfer of sovereign rights. It is accepted that he probably have the competence to look for formal deficiencies. USPTO Releases Benchmark Study on the Artificial Intelligence Patent Landscape. As it is, it may never happen. Last but not least, costs for simultaneous interpretation are costs of the proceedings to be decided upon under R 150 UPCA, except where a party engages an interpreter at its own expense, whereby these costs are borne solely by that party, cf. It seems to me to be all about the EU and Germany signalling that Brexit is a British problem and that Europe carries on regardless leaving the deserters behind. By encouraging protection and enforcement of patents, you would help innovation & industry (particularly SMEs) and IP specialists would also benefit. According to Art 49(1)UPCA and R 14UPCA, the language of proceedings before any local or regional division shall be an official European Union language which is the official language or one of the official languages of the Contracting Member State hosting the relevant division, or the official language(s) designated by Contracting Member States sharing a regional division. It is good that the GFCC has a second look at the UPCA. ; the proposals are a compromise and don’t go far enough (eg three languages rather than one); there are some reservations about jurisdiction and potential loss of work/expertise in member states. If that project had been allowed to proceed, we could by now have had 15 years of streamlined European patent litigation. Make an appointment at one of our locations in Cologne, Berlin, Dusseldorf, Frankfurt, Hamburg, Munich or Stuttgart! Unified Patent Court BREAKING: German Constitutional Court upholds UPC complaint. Several reasons were assserted to achieve the requested nullification of the ratification legislation. Origin and purpose of this belittling spin are clear, just as the mantra-like emphasis that this decision relied “on formal grounds”, insinuating that the UPCA substance was not objected to by the FCC. Bristows LLP. The loss of the unitary patent is even more of a loss for industry, although the loss of the UK to that system was already a major blow which greatly devalued the concept. Save my name, email, and website in this browser for the next time I comment. In its decision, the Constitutional Court said that the UPC amends the German constitution in substantive terms, and hence requires a two-thirds majority in the Bundestag. On that logic, if me and my friend decide we don’t like a piece of legislation up for Presidential signature, we can both work up and then file a plausible complaint. Why would you want to clench tight your eyes to such? Mr Tillmann not to name him, can come up with such drivel. That EPLA could have been a solution to this problem is certain as it was an open convention not limited to EU member states. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. The Unitary Patent and the Unified Patent Court are the building blocks of the so-called Unitary Patent package which will supplement and strengthen the existing centralised European patent granting system. The existing system whereby European patents are enforced separately in each member state will continue for the foreseeable future. – only” patent stakeholders as to what the major pro and con args for / against the / a UPC are? The will is burning still but, James, I think, only in the hearts of certain pan-European litigation outfits lawyering up seriously for practice before the UPC. THE UPC spinners issued a misleading statement this afternoon/morning and it took yours truly about 5 hours to upload the above video. Denn der Bundespräsident soll nicht gezwungen werden, sehenden Auges ein verfassungswidriges Gesetz zu unterschreiben. The CJEU was right in considering the EPLA unlawful under EU law. But Germany is not a kind of banana republic, where one guy just calls another one and that’s it. In a written statement in the House of Commons on Monday, the British undersecretary for … This common European patent title was called the Unitary Patent (UP). They will offer users of the patent system a cost-effective option for patent protection and dispute settlement across Europe. Google, will allow machine translation in any language of a member state of the UPCA, see Article 3 of Regulation 1260/2012. 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