By Benjamin Henrion, Foundation for a Free Information Infrastructure (FFII).

Brussels, 9 November 2021 — The Unified Patent Court (UPC) Preparatory Committee has refused access to secret ‘Draft Declaration’ in order to bypass National Parliaments, the Brexit requirement, and the Vienna Convention on the Law of the Treaties (VCLT). The Preparatory Committee is urgently organising a Signing ceremony without any discussion in any national parliament. The UPC Preparatory Committee is afraid of a compliance check with the Vienna Convention by one of the national parliaments.

FFII has requested a copy of the Draft Declaration, which aims to “re-interpret” the crystal clear requirement on the UK for the entry into force of the UPC PPA treaty. FFII was denied access by the UPC Preparatory committee, probably because this move is not compliant with the Vienna Convention on the Law of Treaties (VCLT):

The UPC Preparatory Committee want to go as fast as possible to bypass any possible debate in any national parliament, because they know that their “re-interpretation” of the PPA is not in line with the Vienna Convention on the Law of the Treaties (VCLT). They want to use an “Interpretative Declaration” to redefine the entry into force of the Treaty, mirroring the entry into force article 89 of the UPCA treaty, which uses the list of TOP3 countries, UK being replaced by Italy.

According to the article on Kluwer Patent Blog, this UPC Preparatory Committee is in line with the VCLT, which is disputed by many people commenting:

According to a report of the UPC Preparatory Committee, the Declaration is ‘in line with public international law’, but it doesn’t elaborate. That is very unfortunate. […] In any event, this train of thought is, or at least by all rights ought to be, heading into the buffers.

— Kluwer Patent Blog, Member States will sign Declaration to clear way for preparatory phase Unified Patent Court, 28 october 2021, http://patentblog.kluweriplaw.com/2021/10/28/member-states-will-sign-declaration-to-clear-way-for-preparatory-phase-unified-patent-court/

Benjamin Henrion, President of FFII:

“This Unified Patent Court (UPC) is way too expensive for small companies, Europe is committing an economic suicide. The UPC supporters only want to achieve one goal: get the system into force at any costs, even if it means violating international law and the rules to make treaties. Untransparent and illegal law making is not what citizens and companies expect in 2021.”

FFII Belgium has also requested a copy of the Draft on the 1st November to Mr Jérôme Debrulle (Ministry of Economic Affairs), representative of Belgium in this secret UPC Preparatory Committee, without any answer so far. ⬆

References

• FFII: Unified Patent Court is 100X more expensive and an SME killer, Europe is commiting an economic suicide https://ffii.org/unified-patent-court-is-100x-more-expensive-and-an-sme-killer-europe-is-commiting-an-economic-suicide/
• Unified Patent Court: Report of the Preparatory Committee meeting held on 27 October 2021 https://www.unified-patent-court.org/news/report-preparatory-committee-meeting-held-27-october-2021 “The Chairman presented a draft Declaration on the authentic interpretation of Art. 3 of the PAP-Protocol, following the United Kingdom’s withdrawal from the Unitary Patent System. In line with public international law, this Declaration will confirm the entry into force of the PAP-Protocol, once the required 13 Member States become bound by said Protocol, recognizing that Art. 3 of the PAP-Protocol is to be interpreted as mirroring Art. 89 of the UPCA. The delegations supported the approach proposed by the Chairman, hence giving him the mandate to organize a signing ceremony of the Declaration, foreseen in the margins of a future COREPER meeting.”
• Jérôme Debrulle, directeur général a.i. de la Direction générale de la Réglementation économique  https://economie.fgov.be/fr/propos-du-spf/organisation/organigrammes/le-president-et-les-dg-du-spf

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