11.29.20

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The Real Fate of the UPC ‘Stunt’ in Germany Will be Known Next Month (or Next Year) and There Are Substantial Constitutional Barriers in the Way

Posted in Europe, Patents at 4:55 am by Dr. Roy Schestowitz

The four panel: BMJV, FCC, Trolls' lawyers, German law, Team UPC and constitution

Christine LambrechtSummary: Contrary to what Team UPC wants people to think, UPC(A) isn’t a “done deal” in Germany; they never actually addressed the substance of complaints and with help from Benoît Battistelli‘s friends in the Commission they’re just attempting a blatant coup

EARLIER this month many scholars across Europe publicised their position on the UPC, which they oppose. The minds, not the litigation lawyers, consider UPC/A to be a bad thing. They’re still adding more signatures and are actively working to squash the UPC, seeing that it is bad for Europe and insulting to the Rule of Law. As someone put is on Friday, citing/quoting FFII: “Politicians willfully ignored the problem that the UPC violates the “Rule of Law” principle, as the EPO still cannot be sued for maladministration, where there are 4 pending complaints in Karlsruhe, which should be issued in early 2021.”

“It’s not impossible that there will be multiple constitutional complaints next month. Time will tell; but this was expected all along (as was the outcome of the Bundestag vote).”We said we’d refrain from wasting much time on this, foreseeing another major failure for Team UPC. It is meanwhile more apparent that the complainant the first time around has several weeks to submit another, maybe to be dealt with in substance this time around (the FCC did not get around to addressing all the points the first time around, dealing instead with a formality). As he has just put that in his site:

Update (25 and 26/11/2020):

On 07/08/2020, the German government started its second attempt to ratify the Agreement on a Unified Patent Court and sent its corresponding draft legislation to the Federal Council (“Bundesrat”; Federal Council printed matter 448/20, German language). In its 993rd session on 26/09/2020 the Federal Council raised no objections to the draft (Federal Council printed matter 448/20 (decision) and protocol, p. 297, both German language).

On 25/09/2020 the German government presented its draft to the German Parliament (“Bundestag”, Parliament printed matter 18/22847, German language). In the first deliberation on 08/10/2020 the draft was referred to the Committee on Legal Affairs and Consumer Protection (in charge), the Committee on European Union Affairs and the Committee on Budgets (protocol, p. 23001 (D), German language).

In its 113th meeting on 25/11/2020, the Committee for Legal Affairs and Consumer Protection dealt with the draft legislation (item 3 on the agenda of 20/11/2020, German language) and recommended its adoption, against the votes of the AfD. A motion by the AfD Parliamentary group to hold a public hearing on the dossier was rejected (see the report “Bills pass the Legal Affairs Committee” of 25/11/2020 and the Resolution recommendation in Parliament printed matter 19/24742, both German language).

The Parliamentary group CDU/CSU is of the opinion (Resolution recommendation, p. 4, last para.)

“…that the primacy of Union law provided for in Article 20 of the Agreement affects neither the fundamental domestic constitutional guarantees, in particular the principles laid down in Article 1 and Article 20(1) and (2) in conjunction with Article 79(3) of the Grundgesetz, nor the Federal Constitutional Court’s jurisdiction to review compliance with minimum constitutional standards in the transfer of sovereign rights to European or intergovernmental institutions.”

The SPD parliamentary group thinks (Resolution recommendation, p. 5, first para.)

“…that the final distribution of the competences of the Unified Patent Court with regard to the partial location in London provided for in the Agreement, that is necessary due to the withdrawal of the United Kingdom from the European Union, is still to be resolved appropriately in the future in consent with the other Member States participating in the Agreement.”

Also on 25/11/2020, the Budget Committee consulted on the draft legislation and recommended its adoption, against the votes of the FDP and the AfD (Resolution recommendation in Parliament printed matter 19/24743, German language).

Already on 26/11/2020 the German Parliament will hold its second and third deliberations on the draft legislation (item 15 on the agenda of 25/11/2020, German language).

The consultation of the Legal Committee of the Federal Council is currently scheduled for 02/12/2020 (survey 56/20 of the agenda, German language), the Federal Council can therefore be expected to make its final deliberation on the draft legislation in its 998th session on 18/12/2020.

It’s not impossible that there will be multiple constitutional complaints next month. Time will tell; but this was expected all along (as was the outcome of the Bundestag vote). Even Team UPC spoke about this in advance. It was foreseen.

This has become a matter of politics instead of law. As Benjamin Henrion told me the other day: “Now von der Leyen cabinet does not seem to reply to my emails deposi[ti]ng the letter. Sent it via recommandé 2 days ago, still no proof of good reception. They are playing with us.”

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