Stay informed on Intellectual Property law & developments. Federal Constitutional Court - decision. This is a matter of regret since it was not what most of industry wanted. Richard Pinckney, German UPC ratification on hold . The approval was given by a majority of over two-thirds of … 173). But it has at the same time pointed the way to a future ratification. 11 September 2020. On 20 … It is however not finished: according to R 14(2,c) UPCA, even if the parties themselves have chosen to use an additional language of the EPO as the language of proceedings, the judge-rapporteur may order in the interest of the panel to provide that judges may use in the oral hearings the official national language(s) of the country where it is situated. Die h.M. gesteht dem Bundespräsidenten ein solches Prüfungsrecht zu. 100 Victoria Embankment. These have been observed. Politicians in mainland Europe have grown fond, in recent years, of the saying “Where there’s a will, there’s a way”. The attractivity lies in reducing the number of national parallel litigations, which will still happen with the UPC. 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. If, on the UPCA, there had still been pan-European political pressure to “finish the job” the FCC would have felt more hot breath on the back of its neck, not to knock the UPCA on the head. Unitary Patent & Unified Patent Court / Webinar. But it’s hard to see this happening any time soon and there’s no guarantee about the outcome, or whether there would be a further legal challenge. James Nurton I can think of reasons why this might not happen … but certainly not any reasons that reflect well on the legal industry. or if you would like to watch a video: Any complaint can only be judged by the competent judge and the designation of the judge has to occur in accordance with set rules. An EU patent (to complement the already up and running EU RTM and Reg Des regime) would help towards that objective. Several of these do align. The “Not Invented Here” syndrome, I believe. My point is that our federal government, our representatives representing about 2/3 of the population as well as the states have unambiguously expressed their will to have a law in force, but all of this can be rendered vain and the will of the people can be denied or the implementation thereof significantly delayed just like this? This can be considered as an invitation to better substantiate those points. Internationally, a solution for the London UPC divisions has been discussed. Don’t flatter the British. It took the FCC three years to decide on this complaint, and to partially uphold it, on formal grounds. The question of translations was and still is a source of revenues for firms of representatives. Only the costs for interpretation and translation which are necessary for the judges of the Court in order to conduct the case in the language of proceedings are borne by the Court, cf. The UPC Agreement was signed in February 2013, and had to be ratified by 13 EU member states, including the three largest patenting countries. 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. 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. By Christian Kau / 17 July 2015 15 February 2018 / Patent Law, Unified Patent Court, Unitary Patent. But now there is a real prospect that the Bundestag will pass the legislation this year. 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 … If only one of these satisfies the court, the complaint is fully granted. 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. As you say: WELL DONE GERMANY. According to Art 49(5) UPCA, at the request of one of the parties and after having heard the other parties and the competent panel the President of the Court of First Instance may, on grounds of fairness and taking into account all relevant circumstances, including the position of parties, in particular the position of the defendant, decide on the use of the language in which the patent was granted as language of proceedings. The members of all parliaments having ratified the UPCA have certainly not heard about all these problems. Of those that are litigated in multiple jurisdictions, the litigation may be settled across multiple jurisdictions before reaching court in all of them. The first constitutional complaint against UPCA ratification in Germany was filed in March 2017. Clear is one thing, IF the GFCC decides, the new law conforms to the constitution, then the president has to sign. You have to remember many EP patents are only validated in a few countries. It will now be amusing to see the same mantras repeated again and again from the same quarters – the complaints will be dealt with quickly, they will be summarily rejected without going into the merits, the UPC will be “up and running” by the end of the year, et caetera, et caetera. ... Germany is one of the three key member states that must ratify the Agreement in order for the UPC to go ahead. The UPC suffers from a birth defect which is difficult to overcome: trying to combine an open convention not limited to EU member states as far patent granting is concerned with a closed convention about the use of the title so granted and only valid for some EU member states. This could significantly improve harmonisation / predictability of the outcome of patent infringement actions in different EPC member states. Google, will allow machine translation in any language of a member state of the UPCA, see Article 3 of Regulation 1260/2012. According to Art 49(2) UPCA, Contracting Member States may designate one or more of the official languages of the EPO as the language of proceedings of their local or regional division. Your email address will not be published. Where are compelling the figures showing the economic necessity of a system like the UPC? Yesterday (10 September 2020) the UPC Preparatory Committee met (albeit virtually) for the first time since March 2017. A first year law student can immediately see that the whole argumentation is not worth the paper on which it is printed. I cannot see how this two extremes can be reconciled. The German Bundestag is to vote next week on the renewed attempt to enact the Unified Patent Court law. Bringing regularly all judges dealing with IP in general, and patents in particular, together would allow a much better European integration at a fraction of the costs induced by a system like the UPC. Following the passing in Germany of the Bill for Re-ratification of the Unified Patent Court Agreement (UPCA) in December 2020, two constitutional complaints against German ratification were filed at the German Federal Constitutional Court (FCC). But anyway this is all ancient history. Point 106 in the decision of March 2020, has been completely ignored in the explanatory note of the ratification bill. Legislators are there to make the law. The FCC has now confirmed to journalists that the FCC has asked the Federal President not to sign the bill into law. At IPWatchdog.com our focus is on the business, policy and substance of patents and other forms of intellectual property. Is this ‘fixable’ by merely taking a proper vote? They will offer users a cost-effective option for patent protection and dispute settlement across Europe. The Court’s press release states that sovereign powers should only be conferred in ways provided for by the Basic Law: “An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.”. But I am wondering whether this modus operandi is worthy of a democracy. 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. [Dimmer brothers are sometimes jealous]. But English law does fact-finding (discovery, cross-examination) more rigorously than in civil law jurisdictions like the EPO. That it might end up with the UP and the UPC never seeing the light is not to be dismissed. The German Federal Constitutional Court has upheld the constitutional complaint filed against the German UPC legislation. Share . Notably, Spain and Poland decided not to participate. In case the official language is used over the chosen language, each order and decision shall be accompanied with a certified translation for enforcement. “but, James, I think, only in the hearts of certain pan-European litigation outfits lawyering up seriously for practice before the UPC”. Dieses sprachlich eingängige Argument ist verfassungsrechtlich näher zu untermauern: Nach Art. 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 … 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. Observers expected the UPC project to be stalled for years to come. 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. Immerhin ermöglicht diese Beschränkung in der Staatspraxis dem Bundespräsidenten trotz etwaiger Bedenken das Gesetz zu unterzeichnen, da jedenfalls kein „zweifelsfreier und offenkundiger“ Verfassungsverstoß festgestellt werden konnte (vgl. You might think that is fanciful, but it doesn’t look any less fanciful than the UPC at the moment. UPC – Progress on German ratification. So, the “phone call” here is an indication for the federal president that the courts sees a doubt regarding constitutional compliance. This interpretation goes manifestly not only against the German Constitution, but also against the European Convention on Human rights. In other words a cost/benefit analysis, which should have been the starting point is missing. As to the advantages of leaving the system in Europe as it is, I would mention the competition for business, between the specialist patent courts of i) Germany ii) England & Wales and iii) The Netherlands, in between. The Unitary Patent and the Unified Patent Court are the building blocks which will supplement and strengthen the existing centralised European patent granting system. My sense of this decision is that it is the FCC recognising this reality and quietly and unostentatiously putting the UPCA to sleep. Should the EU strive to create for itself a “single market”? 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 … Today IPWatchdog is recognized as the leading sources for news and information in the patent and innovation industries. https://www.katheraugenstein.com/en/the-german-federal-constitutional-courts-new-scepticism-about-europe-why-it-wrongly-contradicts-the-court-of-justice-of-the-european-union-and-what-this-means-for-the-unified-patent-court/. Following on from the announcement that the German Federal Constitutional Court (the "FCC") has upheld the complaint that, as it stands, the ratification of the Agreement on a Unified Patent Court (the "Agreement") is unconstitutional, further details have emerged as to the FCC's decision and the impact this may have on the survival of the Unified Patent Court ("UPC"). Then at least we know that it is really the intention of the senate and not perhaps just some clerk in the court or a single judge pretending to speak for the senate who made a phone call. Ratifying a text comprising the famous Art 7(2) UPCA mentioning London as location for a section of the Central Division of the UPC was inviting trouble. The start of the new system is currently expected for the beginning of 2022. Anon – the answer is: possibly. The present situation is different from the first time as in the meantime Brexit occurred. Besides that it seems to me that the sympathy for the GFCC very much depends on the fact whether someone is in favour or against the UPC. The FCC has conﬁrmed this in answer to questions by Kluwer IP Law about a D Young report. Since then, more EPC member states have signed up to the UP package … thereby accepting a system in which fewer (and, eventually, zero) translations would be required to “validate” a (unitary) patent in their territory. Thanks for the article James. Even the point you offer in your last response indicates that the picture must be far more complex. All other readers will be directed to the abstract and would need to subscribe. 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. As a court established by treaty participating in the interoperation of European Union law, it bears similarities to the Benelux Court of Justice. R 109(1) UPCA. Other points, like the independence of the judges and their designation have been dismissed as not being sufficiently substantiated. 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. Separately, the UK recently said that it will not take part in the UPC after Brexit. I might have been long, but I am sure that very few people have an idea what the language regimen before the UPC are, and the intricacies it entails. If there is doubt, the president alone decides whether he signs or not. 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