01.19.17
Corporate (Wall Street) Media Agrees That Brexit Dooms the Unitary Patent (UPC)
This is what the EPO said in 2015 (every year the UPC is “ready” or “about to start”)…
Summary: The nonstop lies or the fake news about the UPC starting “real soon now” don’t quite pass a reality check or a basic assessment based on fundamental concepts, such as the UPC’s facilitation of subordination (to Europe) in the United Kingdom
THERESA May may indeed have just killed the UPC, based on her historic speech which was delivered earlier this week. We already published a couple of articles about it and this one person drew our attention to a a new article by Peter Leung from Bloomberg BNA. “U.K.’s ‘Hard Brexit’ Plans May Undermine Patent Court” says the headline and here is the opening part with a succinct explanation:
The U.K.’s plan to join the proposed Europe-wide patent court could run into conflict with Prime Minister Theresa May’s desire to leave the jurisdiction of the European Union’s highest court.
May’s Jan. 17 speech promised to “bring an end to the jurisdiction of the European Court of Justice in Britain.”
However, decisions by the Court of Justice of the EU (CJEU) will be binding on the Unified Patent Court (UPC).
May’s speech highlights the fact that the fate of the UPC is closely intertwined with the complex negotiations over the U.K.’s withdrawal from the EU.
In November, the U.K. announced that it would ratify the UPC agreement even though it will leave the EU. The new patent court is expected to start operations in 2017 and will have jurisdiction over a new unified patent right to have effect in most of Europe.
“The decision to proceed with ratification should not be seen as pre-empting the U.K.’s objectives or position in the forthcoming negotiations with the EU,” the U.K. Intellectual Property Office told Bloomberg BNA in an emailed statement.
The above, for a change, involved some fact-checking. Many publications these days, especially in the area of patents (or IP, which would mean also trademarks, copyrights etc.), are used/exploited/hijacked by Team UPC and/or the patent microcosm to promote the UPC based on jingoistic lies. They do the same thing to high-profile blogs. We have grown tired of that and recently adopted the label “fake news” in rebutting that noise.
“We need a strike in the UK against the Unitary Patent,” Benjamin Henrion wrote this week, as there is threat of “software patents via the backdoor” (as we covered here before).
“Shall the need arise,” I told him, we can set up a petition and call for protests, but “for now they’re just waffling over a dead UPC…”
There are attempts to fool or to shame the system into the will of UPC hopefuls. Those who are sober realists are being painted as having embraced a more extreme view. Take this new blog post for instance. “Ultimately,” it says, “whether the argument is accepted by the government and argued for strongly will depend not on its detailed, technical merits but whether it is acceptable to enough Tory MPs and right-wing newspapers. There are plenty of other areas of international trade where similar arguments are being raised. For example, representatives of the Law Society and English Bar made similar points about the mutual recognition of court judgments in the UK and EU, post-Brexit, when they gave oral evidence to the House of Lords’ Justice Sub-Committee recently.”
The matter of fact is, businesses in the UK — or Europe as a whole for that matter — do not want the UPC (they're being talked about — not for — by the patent microcosm). Most of them don’t even know what the heck it stands for and what on Earth the UPC is or does. Those who think they know what the UPC would do often base it on misinformation, as they have been lied to by the patent microcosm (see this week's example of fake news in ‘Financial Director’).
The “Unitary Patent,” says Gérald Sédrati-Dinet this week, “after 6 years, arguments I’ve raised on http://unitary-patent.eu are still valid” (links to some other fake news).
Remember he was threatened by the EPO, just like us. These people are bullying dissenting voices; they want to silence UPC antagonists.
It turns out that there is yet another barrier to the UPC, other than Brexit and Spain’s persistent refusal to accept the UPC. According to this tweet, which links to a new article in Polish, “Poland [is] yet not ready to join European Unitary Patent System | WTS Rzecznicy Patentowi @MSZ_RP @PremierRP http://wtspatent.pl/aktualnosci/patent-europejski-ze-skutkiem-jednolitym/”
“And if not dead,” asks the following comment, “is the UPP mortally wounded?”
Well it is dead unless it somehow gets resurrected, which is almost an impossibility in nature, unless one has strong religious beliefs (like a lot of the UPC echo chamber, where people just preach to their choir and say to each other what they want to hear). The UPC is dead/dying. But nobody wants to say it. Here is the full comment:
TM has now ruled out the CJEU having “direct” legal authority in the UK. Does this mean that the unitary patent project has just been killed (despite the UK, rather bizarrely, having previously indicated its willingness to proceed)?
And if not dead, is the UPP mortally wounded? It is now crystal-clear that the UK will no longer be an EU Member State, most likely by 2019. But the current wording of the UPC Agreement and the UP Regulations rather heavily rely upon all “Participating” Member States being EU Members. This affects pretty much every founding principle of the UPP, including issues such as unitary effect / character, legal personality of the UPC and scope / enforcement of decisions of the UPC… and there are no signs yet of any plans to “fix” those problems.
Based upon current signs, it seems that the political will is to press on regardless. But placing such a huge gamble on the system being able to survive Brexit seems absurd. The UK may feel that it will gain influence by getting the UPC up and running before Brexit… but it will then become a hostage to fortune with regard to the inevitable challenge at the CJEU, alleging non-compliance of the UPP with EU law. At that point, the UK will have no representation at the CJEU. So what will the UK then do if the EU Member States decide to kick out the non-EU country in order to preserve the system?
Here is another (longer) comment on the subject, latched just yesterday onto an article from 3 years ago:
Darren: I have an off-the-wall question for you. Can a “unitary” European Patent have unitary effect in a “Participating Member State” (PMS) that has not ratified the UPCA?
I had always presumed that the answer is a clear “no”. However, the rather loose wording used in Reg. 1257/2012 has given me pause for thought. Let me explain why.
Art. 2(a) of Reg. 1257/2012 defines a “PMS” essentially as an EU MS that participates in Enhanced Cooperation under Decision 2011/167/EU (or subsequent decision) in connection with unitary patents. That definition of PMSs clearly includes countries that have not ratified the UPCA.
So this begs the question of whether Reg. 1257/2012 limits the unitary effect of an EPUE to only certain PMSs.
Art. 5(2) is one example of a provision of Reg. 1257/2012 that refers to PMSs in which an EPUE has unitary effect. This of course implies that there can be PMSs in which the EPUE does not have unitary effect… a concept that is confirmed by the 2nd paragraph of Art. 18(2).
However, what is meant in Art. 18(2) by “participating Member States in which the Unified Patent Court has exclusive jurisdiction with regard to European patents with unitary effect”? The UPCA does not talk about “exclusive jurisdiction”, but rather “exclusive competence”. Further, the “exclusive competence”, as defined in Art. 32 UPCA does not have any geographical limits. (The opposite is true for the territorial scope of the decisions of the UPC, as defined by Art. 34 UPCA… but the question of where a decision has effect is completely separate from the question of where a patent has effect.)
Of course, this is where Art. 17(2) or Art. 18(5) of Reg. 1257/2012 could help. Those provisions require PMSs to update the Commission with progress made in updating national laws to ensure no “double” (unitary / national) protection. That is, those countries that do not notify the Commission under Art. 17(2) or 18(5) might be deemed to be PMSs in which there can be no unitary effect.
However, it seems absurd to interpret the territorial effect of an EU Regulation (which, of course, has direct effect regardless of national implementation) by reference to actions taken, or not taken, under national law.
Indeed, if ratification of the UPCA were a prerequisite to an EPUE having unitary effect in a PMS, then why does Reg. 1257/2012 not explicitly say so? After all, ratification progress is mentioned in Art. 18(3)… but with no apparent connection to Art. 18(2).
Also, what are we to make of the mis-match between “exclusive jurisdiction” in Reg. 1257/2012 and “exclusive competence” in the UPCA (bearing in mind the small areas of retained competence of the national courts, as well as the shared competence during the transitional period)?
If we can answer all of the above points, then I suspect that the answer to your original question will also emerge. Indeed, there will likely be a way found for the UPC and national courts to clearly distinguish between EPC Contracting States that are “ratified” PMSs, “non-ratified” PMSs, non-PMS EU MSs and non-EU MSs. But whether that distinction will survive Brexit is another question entirely…
People who are actually in this profession know deep inside that the UPC is unlikely to happen (certainty true in the UK). But what they say publicly is just a futile attempt to persuade young and inexperienced (especially in this area) politicians like Jo Johnson. We oughtn’t let them get away with the spreading of falsehoods. █
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