THE TRUTH of the matter is that Europe already has patent courts and the law is mostly unified, albeit there are subtle differences. These many courts reject a lot of the patents granted by the European Patent Office (EPO), especially under the oversight (abuse rather) of António Campinos and Benoît Battistelli. The courts would almost always reject software patents in Europe (just like American courts reject such patents because of 35 U.S.C. €§ 101, no matter what the USPTO says).
"The UPC is basically dead at this point."The death of the UPC means that a lot of European Patents don't stand a chance. They were never supposed to be granted at all.
The UPC is basically dead at this point. Yesterday we added two updates about the news from the UK. Looking at the comments, not a single person suggests that the UPC still stands a chance. Nobody at all. Even prior to that news people already expressed deep scepticism. Jan Van Hoey wrote yesterday at 2:13 (very shortly after the news came out):
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.
I have been starting to wonder whether the UPCA will actually survive a potential second constitutional complaint. True, the Constitutional Court raised several aspects that did not have to be decided last time but also true, at that time the Second Senate of the Constitutional Court consisted of a majority of rather EU sceptical Judges (cf. the latest ECB judgment). However, there have been some changes of staff in the Second Senate recently which arguably has shifted the majority towards being rather EU-friendly.
Against this background, I would not be surprised if the Constitutional Court would let the UPC pass next time (even though in my opinion there are a couple of issues that are very problematic).
Or, in the words of Hon. Charles Evans Hughes: “the constitution is what the Judges say it is (…).”
Prompted by Thorsten’s excellent piece, it occurs to me that there is a way forward, if there is a will amongst the surviving EU Member States.
I recall somebody suggesting that the biggest obstacle to the adoption of English as the single working language of the EU was UK membership. The UK would be perceived as having an unfair advantage. But now the UK has gone, is there any Member state left with English as its ONLY national language? Even the republic of Ireland has the Gaelic. The way is more free now, for FR and DE gracefully to step back, and agree that English shall be the single working language of the EU. That’s one example of new opportunities opening up with the secession of the “United” Kingdom.
Back in the 1970’s, Europe built the EPC, a wonderful achievement which has proved to be the model, the template, the benchmark, for patent law world-wide. A common regime for patent litigation was, however, a step too far. But perhaps today, with the UK having walked off the playing field, the moment has arrived, when the EU could write a template for international patent litigation? What a statement that would be, that there is life in Old Europe yet.
We have a G7 and we have a G20. There are moves afoot to create a G10. Excellent idea. Given enough of a following wind from Flinten Uschi and the EU Commission, the EU could put together a plan for international patent litigation which, for our generation, does for patent infringement disputes as super a job as the EPC did, and increasingly does, better and better, for international patent validity disputes. In the favourite words of Boris Johnson, even “world-beating”. Why not for patent litigation too? Let’s be bold and brash, in areas where it is still possible.