07.05.20
Gemini version available ♊︎Christine Lambrecht (German Minister of Justice and Consumer Protection) Ignores the Fact That Even Patent Experts Reject the Unitary Patent (UPC)
And “more than 71.4 % of judges no longer support the UPC,” based on a recent survey
Summary: The debacle single-handedly caused by and attributable to Christine Lambrecht, who is eager to appease litigation lawyers, is made yet worse by the fact that people in this domain/profession reject what she’s trying to ram down people’s throats
PRESIDENT António Campinos from the European Patent Office (EPO) has said nothing about the FCC’s decision except that foolish praise of the ludicrous statement from Christine Lambrecht. Campinos disregards judges and courts almost as much as Benoît Battistelli did (if not more so). Later he’ll wonder why only about 3% of the staff trusts him based on a recent survey.
“Brexit is, in its own right, an incompatibility for the UPC.”Last week we became aware of an article in which a law firm called Cohausz & Florack explains: [via Lexology]
The UPC is now being widely questioned. According to a Juve survey of more than 600 patent experts in April 2020, 55.3% actually reject it. Only 33.6 % of those questioned still support it. The result is even clearer among the attorneys and judges surveyed: 56.5 % and 59.4 % of patent attorneys and attorneys-at-law respectively and more than 71.4 % of judges no longer support the UPC. Industry representatives are also rather skeptical: 43.5 % of company representatives stated that they no longer support the current UPC.
According to Juve, small and medium-sized enterprises (SMEs) in particular see a negative impact through the UPC. “The main reason is the increased costs”, says Dr. Natalie Kirchhofer, patent attorney and partner at COHAUSZ & FLORACK. “For innovative SMEs in particular, these costs, which are many times higher than those incurred in the enforcement of own inventions before the UPC, play an important role in their competitiveness”. Gottfried Schüll, patent attorney and partner at Cohausz & Florack, is also critical of the lack of jurisdiction of the national patent infringement courts for granted EP patents, which will come eventually with the UPC: “This means that patent owners who are looking for inexpensive legal protection need to resort to national German patents. European patent law is becoming a law for corporations. SMEs, the pillar of German competitiveness, will not benefit from the advantages of European unification of patent protection. In fact, the opposite is the case”.
“Even for large corporations with huge patent portfolios, for example in IT, e-technology, communication technologies and the pharmaceutical industry, uncertainties are to be expected under the UPC – among other things, about which legal remedies are possible under the UPC and how these are influenced by national experience through the choice of local chambers”, says Dr. Arwed Burrichter, patent attorney and partner at COHAUSZ & FLORACK.
As Great Britain was still involved in the drafting of the UPC Rules of Procedure, these are also significantly influenced by common law aspects. These are now no longer accessible to professional representatives at the UPC, since, due to Brexit, the British colleagues are no longer available. There is therefore no essential basis for a consistent application of the law.
Brexit is, in its own right, an incompatibility for the UPC. FFII is working on a statement or complaint to that effect already.
D Young & Co LLP’s Jonathan DeVile has meanwhile noted: [via Lexology]
At the end of March 2020, EPO President Campinos pronounced strong support for the statement by the German Minister of Justice and Consumer Protection, Christine Lambrecht, of her intention to remedy the deficiencies in the legislative procedure which led to the German Federal Constitutional Court (FCC) declaring the agreement by the German Parliament (Bundestag) of the Unified Patent Court and the Unitary Patent (UPCA) to be void. So was that just another bump in the road for the UPCA?
The Unified Patent Court and the Unitary Patent Agreement (UPCA) was agreed in 2013 and enough countries had ratified the agreement for it to come into existence, that is, if Germany had ratified. Of course the concept of the UPCA is even older than the European Patent Convention; the UPCA being its latest incarnation.
Even after the Brexit vote in 2016, the UK Government under Prime Minister May ratified the UPCA in 2018, perhaps encouraged by a legal opinion obtained by the Chartered Institute of Patent Attorneys (CIPA) that the UPCA was an international treaty and therefore open to the UK after Brexit. Then came a complaint in 2017 filed by a private citizen to the German Federal Constitutional Court (FCC) that the vote in the Bundestag violated the constitutional rights of German citizens.
In March 2020 the FCC ruled partially in favour of the complaint that the vote in the Bundestag in 2016 for Germany to adopt the UPCA was unconstitutional and therefore void. The Bundestag requires a majority of two thirds of its members to adopt an Act affecting the constitutional rights of German citizens. According to the FCC, although those members of the Bundestag present at the time voted unanimously to adopt the UPCA, the formal requirement for a majority of two thirds of the members of the Bundestag had not been satisfied. However there is some nuance in respect of the analysis and the conclusion in reaching this decision by the FCC, which would appear to have wider ramifications.
It has since then been noted that the substance of the complaint gives additional grounds for rejection of UPCA and therefore what Lambrecht is doing will merely disgrace the Ministry of Justice and Consumer Protection, making it seem like it’s neither for justice nor for consumers. The title of the above article says “end of the road” and it seems growingly apparent that law firms are sort of ‘bailing out’ and giving up on the UPC. Whether another incarnation of UPCA will materialise is another question; it can take a decade or more. Without the UK, moreover, the value of such a system (and consent for it) would be greatly reduced.
“If “lobbyism” drives the Ministry of Justice and Consumer Protection, then it makes Germany as a whole look like a ‘banana republic’.”Back in March we explained that the UPC had died due to Brexit. Another blow was the constitutional complaint in Germany, then the UK’s official position (rejecting the UPC) and finally the FCC’s decision, which was the final nail in the coffin.
And speaking of nail in the coffin, Lambrecht political career may be over. What she did in the Ministry of Justice and Consumer Protection disgraces not only the ministry but the person who has only led it for about a year.
Lambrecht should listen to constituents and experts, not a bunch of lobbyists. If “lobbyism” drives the Ministry of Justice and Consumer Protection, then it makes Germany as a whole look like a ‘banana republic’. People are already complaining and damage is done based on underlying facts. █
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