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11.29.18

Even Sites That Served UPC Propaganda for Years (for These Sites’ Owners) Have Come to Admit That the UPC Might Already be Dead

Posted in Europe, Patents at 10:26 am by Dr. Roy Schestowitz

The tone has changed a lot and few remain openly enthusiastic about the UPC’s prospects, e.g. a patent trolls' attorney (Tilman Müller-Stoy) and Kevin Mooney

Tilman Müller-Stoy
Image source

Summary: The Unified Patent Court Agreement (“UPCA”) is dead; the German Federal Constitutional Court (Bundesverfassungsgericht) won’t be ruling on the matter any time soon, leaving it to die on the altar; most of Team UPC, which spent nearly a decade on this horrible legislative coup, is just mortified, shell-shocked and silent

DO NOT expect to hear much about the UPC; we track the subject very closely (with triggers and alerts) and it is quickly grinding to a complete halt/stop. Bristows’ UPC blog, for instance, published only one post in about 3 months and other UPC blogs are completely dead.

IAM’s Adam Houldsworth has just talked about UPC — yet again — in relation to the US (IAM was paid by the EPO‘s PR firm to promote UPC in the US, showing utter lack of ethics and morality, having already intervened in USPTO affairs). Other than that? Almost nothing. Nothing. It’s dead.

Battistelli’s abusive if not seriously illegal behaviour against EPO judges is one of the factors that killed the UPC. As one EPO-centric blog put it yesterday:

The disciplinary case against Elisabeth Hardon should not let us forget that the disciplinary case which keeps the Federal constitutional court (Bundesverfassungsgericht) busy at present is about a DG3 member. Are there any news about him? Not really. He is still officially supposed to work at the Hague in a room without a phone number.

Even more puzzling: there were several DG3 members reappointed in the last Council session and new posts were created as well, yet he is still not reintegrated. Märpel thinks he is probably the only DG3 member which did not see his contract renewed.

The Federal constitutional court shall therefore have little choice but notice that DG3 members can be removed at will and therefore are not independent. This will have consequences for the implementation of the UPC, obviously.

[...]

In simple words: President Campinos seeks to increase its power even beyond what “sun-king” President Battistelli had.

A few days ago the pro-Unified Patent Court blog of Kluwer took note of the CJEU Teva-Gilead case, dubbing it “a word of warning for UPC seafarers”. From the relevant part: “Certainly, the move in judgment of 25 July 2018 will disappoint those who pushed for the removal of substantive patent law from the text of Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, hoping that this trick would prevent the CJEU from interpreting substantive patent law. From this perspective, the recent Teva v. Gilead decision may be interpreted as a word of warning for Unified Patent Court (“UPC”) seafarers.”

As readers may recall, the Federal Constitutional Court signaled that it may take a very long time to issue a decision. UPCA ratification is extremely unlikely in Germany and the German attorney Thorsten Bausch wrote about it one day after the above, soon to be mentioned by Team UPC, which seems to agree: “Excellent summary on status of UPC vs German constitutional complaint and Brexit as well as on various hypotheticals spread by interested parties.”

Citing a patent trolls’ attorney (Tilman) as ‘proof’ or ‘support’ for the UPC, Bausch wrote:

The prophets forecasting an early decision by the Bundesverfassungsgericht in view of the urgency of the matter for Europe – or perhaps rather for their own pockets, have so far consistently been proven wrong. Dr. Stjerna’s constitutional complaint was filed on 31 March 2017 and has definitely not been decided “by Christmas”, as some predicted (in 2017). It was put on the (wish)list of court cases to be decided in 2018. But this does not mean much, as many cases on this list have been there for years. So much for the facts.

What do the complainant and interested third parties suspect?

Dr. Stjerna himself made abundantly clear that he has no idea when the BVerfG will decide on his case. He complained about this on his website by pointing to the fact that the court does not provide any information about the proceedings and their expected course even to the complainant, who is currently the only party to the proceedings. BTW, he can only know this, if he is the complainant himself, which he has never explicitly conceded, but also never denied.

The German Government also does not know when (and how) the case will be decided, as Dr. Pakuscher from the Federal Ministry of Justice and Consumer Protection recently confirmed during a seminar in Munich.

[...]

Be that as it may, most observers seem to think that a pre-requisite for the UK to join or stay in the UPCA is a successful closure of the withdrawal agreement between the UK and the EU. Otherwise, there would be no transition period and the UK would automatically drop out of the EU by virtue of Art. 50 TEU on 29/3/2019, i.e. before the UPCA will enter into force. As the Unified Patent Court shall be a court common to the Contracting Member States (Art. 1 UPCA), the “Contracting Member States” are “Member States” party to the UPCA (Art. 2 c UPCA) and “Member States” are defined as member states of the European Union (Art. 2 d UPCA), the UK’s participation is difficult to argue if the UK ceases to be a “Member State” before the UPCA is even enacted.

How realistic is the successful closure of a withdrawal agreement? Hmm… let us return to this question after the debate in the House of Commons in early December and assume, just for the moment, the best possible scenario from a UPCA point of view, i.e. that a Withdrawal Agreement will be closed by 29 March 2019 and that the German Constitutional complaint will be dismissed in December (aka “the Tilmann/Mooney scenario”).

This scenario will then pose the interesting question what Germany will (or should) do, i.e. proceed with the ratification at the risk that the UK may eventually not agree to the supremacy of Union Law and the CJEU as final arbiter, when push comes to shove, and/or that the EU and the UK will not manage to cut a “deal” on their further political and economic relationship at the end of the transition period. This could then mean an early end of the UK’s participation in the UPC Agreement and result in quite a bit of turmoil.

Mind that first comment:

Thorsten, thank you for sticking to the facts. It is much appreciated. There are, however, one or two points upon which it might be interesting to speculate.

The first point is a question of timing. That is, even if one assumes that Prof. Tilmann is well informed regarding how and when the BVerfG will decide the constitutional complaint (and putting aside the question of how he could have possibly come into the possession of the information upon which he based his statements), will Germany deposit its instrument of ratification for the UPCA before the Agreement governing the UK’s withdrawal from the EU has been ratified by all relevant Parliaments?

The second point is a question of legal mechanisms. That is, given that the UPCA does not contain any provision to (forcibly) expel Participating Member States, what could the EU (Participating) Member States do if the UK refused to withdraw from the UPCA even if (e.g. in the event of a “no-deal” Brexit, or after the transitional period provided by the Withdrawal Agreement) it was no longer bound by judgements of the CJEU?

It is also worth considering how these two points might interact with one another. For example, even if the Withdrawal Agreement is ratified, might it still be foolish for Germany to ratify the UPCA … on the grounds that there are no guarantees regarding the relationship with the UK (and the UK’s approach to judgements of the CJEU) after the end of the transitional period?

Frankly, from considering these points (and others), it appears to me that it would be reckless (to say the least!) for the UPC to be launched unless and until:
(1) the precise nature of the UK’s status after the end of the transitional period (if any) can be determined; and
(2) the CJEU has confirmed that, despite not having the status of an EU Member State, the UK can participate in the UPC without contravening EU law.

My experience is that many UPC enthusiasts are wilfully blind to the true nature of the legal risks for the UPC that are associated with the UK’s departure from the EU. In this regard, I can only hope that Germany will take a more realistic approach than such enthusiasts when it comes to assessing the chances (and the consequences) of the CJEU bringing down any UPC that is based upon the current legislation.

The remaining six (as of this moment) comments show Team UPC creeping in with some typical spin, citing the recent stacked debate with Kevin Mooney in it. Same old boring lies… (and yes, posted anonymously, as usual as of late)

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