An EU patent (to complement the already up and running EU RTM and Reg Des regime) would help towards that objective. So, he HAS to sign, BUT! Dieses sprachlich eingängige Argument ist verfassungsrechtlich näher zu untermauern: Nach Art. The attractivity lies in reducing the number of national parallel litigations, which will still happen with the UPC. 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 … Contrary to the EPO, where cost for simultaneous interpretation are borne by the EPO is simultaneous interpretation are requested in due time, at the UPC the losing party will have to pay for the costs of simultaneous translation. What if this were a law where time is of the essence? For a local or regional division the situation is quite different. Unified Patent Court would make litigation simpler (& possibly cheaper) and give greater predictability and expertise (as in principle you would have the best patent-specialist judges from across the EU taking part). The UK’s ratification indicates its desire to be part of the unitary patent package in spite of Brexit. They are hesitant to interfere in the legislative power, thus they kindly ask to NOT sign, when there is a probable chance the complainant wins. These were some initial reactions on Twitter: James Nurton This is a matter of regret since it was not what most of industry wanted. [Dimmer brothers are sometimes jealous]. Based on official figures of the EPO, the number of patents applications originating from EU members states represent 45% of all applications at the EPO, whereby 34,2 % stem from EU member states and 32,9% from UPCA member states. So, there must be a way, if they wish, that they can establish a European court for patents. Kluwer Patent blogger / January 13, 2021 / Leave a comment The German ratification of the Unified Patent Court Agreement has been put on hold at the request of the German Federal Constitutional Court. E.g. 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. The CJEU was right in considering the EPLA unlawful under EU law. So well done Germany. You might therefore be quite solitary in thinking “That position (illegality under EU law) was something I personally never believed withstood proper analysis”. 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. 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. 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. ... Germany is one of the three key member states that must ratify the Agreement in order for the UPC to go ahead. For this reason, I have absolutely no doubt that the UPC’s strongest supporters will now proceed to argue long and hard that the two new complaints should be immediately dismissed and/or that, irrespective of the complaints, the Bundespräsident should be allowed to sign the new law. Read more. By signing an international treaty with the UK as signatory, Germany is ignoring Brexit, and will violate EU law. Please Note: Only individuals with an active subscription will be able to access the full article. It is not unthinkable that due to new delay in Germany, combined with the departure of the UK from the EU and the Unitary Patent project, which has led to legal uncertainty and has made the UP and UPC less attractive for the industry, the new patent system will never see the light of day. Is a system of multinational litigation setling useful and viable? The Unitary Patent package But rejoice that a constitution is being taken seriously. 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. The FCC has asked Bundespräsident Frank-Walter Steinmeier, to refrain from signing the bill into law, because two constitutional complaints were filed against ratification of the UPCA on 18 December 2020 (2 BvR 2216/20 and 2 BvR 2217/20), the day the Bundesrat completed the parliamentary ratification procedure by unanimously approving the bill. When one looks at the language regimen before the UPC, the following becomes apparent: Very briefly: Pros = unitary patent would reduce translation costs making patents more accessible to small companies. Later “Patent Translate”, i.e. And that, by itself is enough? In Germany, the UPC bill will now be submitted to the German upper house (Bundesrat) for approval later this year. In case the official language is used over the chosen language, each order and decision shall be accompanied with a certified translation for enforcement. Even the point you offer in your last response indicates that the picture must be far more complex. It would also follow the long tradition in Europe of kicking into the long grass the tricky issues that arise with unitary patents (and a unified patent court). Point 106 in the decision of March 2020, has been completely ignored in the explanatory note of the ratification bill. My sense of this decision is that it is the FCC recognising this reality and quietly and unostentatiously putting the UPCA to sleep. Is this ‘fixable’ by merely taking a proper vote? Breaking Down Moderna’s COVID-19 Patent Pledge: Why Did They Do It? Those that reach court in multiple jurisdictions often have those jurisdictions spanning continents. That EPLA could have been a solution to this problem is certain as it was an open convention not limited to EU member states. or if you would like to watch a video: According to a recent survey of the US organization Unified Patents (published on the website of the online portal arstechnica, please click here), the number of lawsuits in the US has again rised. Of those that are, only some are litigated in multiple jurisdictions. Cancel. Send. Today the Bundesrat (Federal Council) approved the draft legislation which will enable Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application (PPA). The German ratification of the Unified Patent Court Agreement has been put on hold at the request of the German Federal Constitutional Court. The present UPC project seems sure to have at least a major delay unless some abridged procedure can be used in the BVerfG which is not something I am qualified to comment on, but seems unlikely based on last time. FEDERAL CONSTITUTIONAL COURT - Decision. For our British friends: how does it compare with the UK? As reported here, the draft legislation required for Germany to ratify the Unified Patent Court Agreement (UPCA) and the Protocol on Provisional Application is currently being considered by Bundestag committees before it returns to the Bundestag for a second reading. Then could you please explain why the FCC has again requested that the ratification proceedings be suspended, although the formal deficiencies were apparently removed? First thought that comes to my mind is that while lobbying power increasingly sways the outcome in the legislative (Berlin) and executive (Brussels) pillars of a Three Pillar democracy running under the Rule of Law, it is (still, at least in Western Europe) less effective at setting the outcome at the FCC in Karlsruhe, within the judicative pillar of our democracy. Unified Patent Court update: German Federal Constitutional Court ruling. Richard Pinckney, German UPC ratification on hold . I wonder though, how long before the courts come under the influence of the most lavishly funded lobbyists. At IPWatchdog.com our focus is on the business, policy and substance of patents and other forms of intellectual property. Clear is one thing, IF the GFCC decides, the new law conforms to the constitution, then the president has to sign. All major internationally active litigation lawyers firms participated in committee setting up of the rules of procedure of the UPC. He is editorial consultant to MARQUES and a partner of Lextel, which provides editorial and thought leadership services to law firms. But I would add to that list those juristic entities that operate pan-national sovereignty style (including what I have labeled as ‘Big Tech,’ but really are more than that: Trans-National Corporations). Tags:Brexit, European Union, German Federal Constitutional Court, intellectual property, patent, Unified Patent Court, Posted In:Courts, Europe, Government, International, IP News, IPWatchdog Articles, Patents. 100 Victoria Embankment. Unified Patent Court stopped due to constitutional complaint in Germany. German Constitutional Court Recruitment for UPC judges raises new speculation. 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. This could significantly improve harmonisation / predictability of the outcome of patent infringement actions in different EPC member states. terms and conditions; privacy … 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. It is the judge-rapporteur who will decide whether and to what extent simultaneous interpretation is appropriate and shall, instruct the Registry to make all necessary arrangements for simultaneous interpretation, cf. By transferring the duties of the London Section to Paris and Munich, the so created tribunal is anything but not established by law. A country with no respect for its constitution is headed for trouble. 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 EPO way is fully compatible with both civil law and common law fact-finding processes. 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. If there is doubt, the president alone decides whether he signs or not. I know, in todays world the concept of “courtesy” seems outdated (at least to some presidents ). US observers might like to comment on the pro’s and con’s associated with the CAFC. 82 Abs. Why would you want to place such inordinate stress on that one factor? Any complaint can only be judged by the competent judge and the designation of the judge has to occur in accordance with set rules. Brexit has created a problem for the UPC and Europe needs to face up to that and solve it in a workmanlike way. IPT Germany. From Juracademy – Bundespräsident: No. Such persons might even see their brother say “yes” to something good, and then themselves say “no”. Would you kindly enlighten all us “U.S. This is because the German Constitutional Court asked him to wait until they decide before executing the UPC law. […] 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. Legislators are there to make the law. Categories. They will offer users of the patent system a cost-effective option for patent protection and dispute settlement across Europe. R 109(1) UPCA. The FCC has conﬁrmed this in answer to questions by Kluwer IP Law about a D Young report. 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In this case the President of the Court of First Instance shall assess the need for specific translation and interpretation arrangements. Unified Patent Court German ratification of UPC on hold. 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.”. Unified Patent Court BREAKING: German Constitutional Court upholds UPC complaint. This is a discussion we already had. Phasing out post grant translations is happening anyway and central renewal fee collection could be agreed. The Unified Patent Court and Unitary Patent Package has received another hit. The Unified Patent Court – on the move again? Denn der Bundespräsident soll nicht gezwungen werden, sehenden Auges ein verfassungswidriges Gesetz zu unterschreiben. Pity my country. 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… Yesterday (10 September 2020) the UPC Preparatory Committee met (albeit virtually) for the first time since March 2017. R 150(1) UPCA. 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 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. 26 November 2020. I would thus go as far as claiming that the way of obtaining a UP is in contradiction. Why would you want to clench tight your eyes to such? All of the above is eminently achievable and, even without the final step to a unitary system, would benefit patentees and third parties alike. THE UPC spinners issued a misleading statement this afternoon/morning and it took yours truly about 5 hours to upload the above video. 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. Germany’s constitutional court has ruled that the nation's ratification of a long-planned Unified Patent Court (UPC), which would create a single legislature for the whole of Europe to decide on patents, was unconstitutional. As a litigation lawyer you should be familiar with the fact that procedural law allows you to cite several reasons for achieving one and the same procedural aim. SME case studies When will the Unitary Patent system start? Unitary Patent . legal-patent… Germany’s ratification would have brought the UPC into effect, but the president suspended ratification pending the Court’s decision. 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. 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. Aktualisiert am 13.01.2021-16:54 Bildbeschreibung einblenden. 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. Good analysis of the legal situation. As is true with most high level patent law discussions, it should be recognized that there are a host of philosophic outlooks in play, and often any one ‘objective stand’ may well be occupied by several different groups with differing (albeit at times overlapping) desired Ends. The German Federal Constitutional Court (Bundesverfassungsgericht - BVerfG) has informed the press (see here and here) that last Friday two constitutional complaints (cases 2 BvR 2216/20 and 2 BvR 2217/20) were filed against the draft legislation enabling Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application. For users to bring important cases to it needs to be trustworthy. In Germany, the ratification process was challenging after the German Federal Constitutional Court had annulled the first German Consent Act to the Agreement on a Unified Patent Court in 2017. Why is there no preliminary injunction issued by the court preventing the Federal Presiding form sigining the bills? I know plenty of lawyers are keen on the UPC because they want to use it and it is good profitable interesting work, but should lawyers really be advising clients use a system which is potentially holed below the water line and open to challenges (Attentive Observer outlines some possible challenges in Germany – but there may well be some in other countries too). A message from the Preparatory Committee Chair, Alexander Ramsay – March 2020 . As far as amendment to the patent is concerned, any amendment will have to be filed in the language in which the patent was granted, R 30(1,a) UPCA. Unified Patent Court: Verfassungsklage blockiert abermals Einheitspatent. Wenn Art. Share . I fail to see here a simplification. 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. I am extremely disappointed that the first case did not exhaust the matter. The decision could leave it open to the Bundestag to try to pass the Act again with the required two-thirds majority. However, the Agreement involved compromises over issues such as language, jurisdiction and location—and was never universally supported. But I’m right with you there as, I think, should be every self-respecting and upright lawyer or patent attorney. One was accepted by the court, therefore nullification was granted as requested and to the full extent requested. Notably, Spain and Poland decided not to participate. Personally, I would like to see what transpires with CANZUK. In its Art 6 it is stated that “everyone is entitled to a fair and public hearing …. USPTO Releases Benchmark Study on the Artificial Intelligence Patent Landscape. There have been efforts for years to create a common European unitary patent and a unified patent court within the EU member states. The UK should try to get something going. According to Art 49(6) UPCA it is only before the central division that the language in which the patent was granted will be the language of proceedings. The identity of the plaintiffs is currently unclear, as is whether German ratification of the Unified Patent Court will now have to be halted again. 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. This is what happened in proceedings 2 BvR 739/17. These are the same that push for a “One World Order” type of approach to patent law, who do NOT like (even as they may be aware of) the notion that patent law is a Sovereign-Centric law. 2 October 2020 by Mathieu Klos. For more information or to contact James, visit his Firm Profile Page. It was actually partially upheld. I see what you did there, Jim. Internationally, a solution for the London UPC divisions has been discussed. 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. Unified Patent Court Breaking: German UPC legislation challenged again by constitutional complaints. The UK’s ratification indicates its desire to be part of the unitary patent package in spite of Brexit. The Unified Patent Court (UPC) – structure, staffing and instances. 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. On 20 … 11 September 2020. Such persons tend not to think of the welfare of their citizens, but rather see their citizens as meat for their vainglory. As far as languages are concerned claiming that the UP/UPC system reduces the language problem is no more than a fallacy. The German Bundestag is to vote next week on the renewed attempt to enact the Unified Patent Court law. The German Federal Constitutional Court has upheld the constitutional complaint filed against the German UPC legislation. Why is it suddenly necessary for a patent granted in French to be translated into English when it should be valid in France or in Germany? This applies only to specific cases, but not to the law-making process. Germany’s Federal Financial Supervisory Authority, better known by its abbreviation “BaFin”,... Read more . You might think that is fanciful, but it doesn’t look any less fanciful than the UPC at the moment. The German ratification of the Unified Patent Court Agreement has been put on hold at the request of the German Federal Constitutional Court. Why? The first constitutional complaint against UPCA ratification in Germany was filed in March 2017. A first year law student can immediately see that the whole argumentation is not worth the paper on which it is printed. Unitary Patent & Unified Patent Court / Webinar. ; 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. The UPC had been broadly supported by industry and patent practitioners in Europe, who believed that, in combination with the proposed unitary patent, it would make it simpler to protect and enforce patents in Europe. Interesting feelings, but without more, it is difficult to accept the basic assertion that the sense of pan-EU acceptable “One World Order” is based merely on litigation costs. Many of the grounds Stjerna had put forward were rejected, in particular, those many considered as being likely successful such as the appointment proceedure if the judges. 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. The interplay in Europe, between civil law and English law, and the competition between the respective courts to lay down the more impressive record in hard cases, is what has raised the quality of patent litigation in Europe (and now will continue to do so). According to JUVE Patent sources, they are to go temporarily to Paris and Munich. Is your statement at 12 a retrenchment from the usual proselytizing that ‘best way is the EPO way’ and that all Sovereigns (especially the US Sovereign) would be better by adopting that ‘EPO way?’. 100 Victoria Embankment. 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. But anyway this is all ancient history. §93d of the Bundesverfassungsgerichtsgesetz. But English law does fact-finding (discovery, cross-examination) more rigorously than in civil law jurisdictions like the EPO. Brussels and Berlin, 15th June 2020 – The German government is pushing for a second vote on the Unitary Patent at the Bundestag. 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