07.20.20

Final Death for UPC: UK Officially Withdraws, Leaving Only France (Updated)

Posted in Europe, Patents at 8:20 am by Dr. Roy Schestowitz

UK Withdrawal from the UPCA

Summary: The mass litigation ‘dream’ is dead; there’s just about no chance at all that the UPC can make any progress (even the twisted ‘logic’ of the EU Commission and BMJV is thrown down the toilet)

TODAY we have some very good news.

At around noon today Thorsten Bausch (Hoffmann Eitle) wrote about “German UPCA Ratification” being attempted by BMJV. To cut to the chase: “This takes us directly to the current plans of the German Ministry of Justice and Consumer Protection (BMJV in German) to rush a second ratification of the UPC Agreement through parliament in an unchanged form, as if nothing had happened in the meantime. True, the BMJV has heard about Brexit and seems to be aware that the UK intends not to participate in the UPC Agreement, yet never mind – the UK has ratified it and so Germany can ratify it too, start the system and the deal with any problems later… somehow. The EU Commission also seems to endorse this view.”

“And just like that another door closes on the UPC, making or marking the end of an era.”“Politically,” Dr. Bausch commented, “I would respectfully submit that this is just madness.”

Jan Van Hoey said in the sole and first comment: “Not mentioning the 4 other constitutional complaints against the EPO for violation of the “rule of law” (art2 TFEU), the EPO cannot be sued for maladministration. So the BMJV knows about those 4 pending cases, but want to mull the UPCA through because the Brexit transition period ends on 31st December 2020. I guess Mr Breton will find a legal way to say the UK is out of the UPCA by the 1st January 2021. He could just recall the decision of the FCC saying the UPCA is only open to EU member states.”

It has meanwhile emerged (a very short time later) that there’s a “UK Withdrawal from the UPCA”; UPC ‘central’ says:

Today the UK made its final preparation to withdraw from the Unified Patent Court project. A deposit of the withdrawal notification of ratification has been deposited with the Council Secretariat. In addition, there has been a parliamentary written statement in the House of Commons by Amanda Solloway (Parliamentary Under Secretary of State, Minister for Science, Research and Innovation )…

This was quickly picked up by Team UPC, which wrote anonymously:

The UK has notified the secretariat of the European Council it withdraws its ratification of the Unified Patent Court Agreement. This has just been announced by the UPC Preparatory Committee.

Goodbye, UPC.

The EU Commission and BMJV look more foolish — if not corrupt — than ever.

As MaxDrei noted the other day:

For the last nearly one thousand years the national security of England has been based on playing off one European mainland Power against another. In the few years of its EU membership, this was tempered by the need to engage, to get EU law-making rational and efficient. But now that the UK is out of the EU it can revert to its thousand year old task of messing up unity on The Continent. Keep that in mind when pondering UK conduct vis a vis the UPCA.

And without the UK as the “third member of the committee” of the Big Boys Club of the EU, with London no longer deciding pharma/biotech cases for the UPC, in patent matters ongoing, Germany and France are free once more to bicker over issues such as “Shall Paris or Munich call the shots”. What we are seeing now is a struggle for supremacy between the governments of France and Germany. As Attentive points out, fine for big industry, but not so helpful for the SME sector. Isn’t there some saying or other about elephants fighting and mice getting ground into the dust?

To which there was the following reply: “As to the present situation in the UK and who calls the shots as to international trade issues, an interesting analysis can be found at [Politico]. Given the division within the UK government, it is not clear that they are in a position to sow division within the EU anyway. The shift towards centralisation at the top of the UK government as signalled in this article implies that any deference to CJUE [sic] is anathema.”

And just like that another door closes on the UPC, making or marking the end of an era. Only France ratified UPCA (among key signatories). We can envision António Campinos phoning Benoît Battistelli right about now, assuring him that the European Patent Office (EPO) will bribe whoever it takes to ‘correct’ this.

Update #1: IP Kat is of course trying to make death of the UPC sound like bad news, having lobbied for this monstrosity:

  • The UK takes the final step out of Unitary Patent Court

    It does not come as a big surprise, but it comes certainly with some bitter feelings. The UK takes the final formal steps towards its withdrawal from the Unified Patent Court project (UPCA).

    Already in late February, the UK government made it clear that the UK would not participate in the UPC. Contrary to the position of the government led by Theresa May, confirming UK commitment to the UPC project, Boris Johnson has expressed a clear line, a very neutral relation to the EU post Brexit. This means also avoiding any form of Court of Justice of the European Union – CJEU involvement, something that would not be possible should the UK proceed with its commitment to the UPC.

    The CJEU has a central role in the UPC agreement as the ultimate arbiter of EU law, and Article 20 of the agreement specifically states that the Unified Patent Court “shall apply Union law in its entirety and shall respect its primacy”.

Update #2: Looking at some comments, “schweinsgalopp” wrote:

UPC boosters will tell us Germany can go ahead with the ratification, and that the UPCA can enter into force anyway.

To quote another: “Let’s get the real deal, an EU-Patentcourt as in the Treaties. Not the Wolpertinger in your hand, the UPC…”

Surely we’ll see more comments — ones that are yet to come (from Kluwer, IP Kat etc. albeit they censor the ones they don’t like)

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