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IRC: #boycottnovell-social @ FreeNode: Saturday, December 26, 2020

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schestowitzhttp://patentblog.kluweriplaw.com/2020/12/26/ip-federation-expresses-concerns-about-unified-patent-court/Dec 26 17:43
-TechrightsSocial/#boycottnovell-social-patentblog.kluweriplaw.com | IP Federation expresses concerns about Unified Patent Court - Kluwer Patent BlogDec 26 17:43
schestowitz"Dec 26 17:43
schestowitz“we support the UPC being available to non-EU member states including the UK where political will allows.”Dec 26 17:44
schestowitzThe GFCC clarified the UPC is only open to EU member states in its March 2020 press release:Dec 26 17:44
schestowitzhttps://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-020.htmlDec 26 17:44
-TechrightsSocial/#boycottnovell-social-www.bundesverfassungsgericht.de | Bundesverfassungsgericht - Press - Act of Approval to the Agreement on a Unified Patent Court is voidDec 26 17:44
schestowitz“The Agreement is open exclusively to EU Member States.”Dec 26 17:44
schestowitzREPLYDec 26 17:44
schestowitzAttentive ObserverDec 26 17:44
schestowitzDECEMBER 26, 2020 AT 6:13 PMDec 26 17:44
schestowitzIt is very interesting to note that the Who’s Who of British Industry is regretting Brexit, which is understandable.Dec 26 17:44
schestowitzNot only the IP Federation regrets Brexit but also all the British lawyer firms who had a big finger in the UPC pie. They will not be able to represent before the UPC and all their dreams of increased income is now lost to their friends on the continent.Dec 26 17:44
schestowitzIt is quite ironic to see that the procedure before the UPC has been strongly influenced by the British litigation procedure, but the Brits have now left. Some of the comments heard after Brexit were to remove this aspect from the procedure before the UPC.Dec 26 17:44
schestowitzOn the other hand what the IP Federation wishes is actually the opening of the UPC to non-EU member states. This sounds to me that they would like the EPLA to be revived again. I fear this wish cannot be exhausted, as the EPLA is dead as dead can be (think of the Monthy Pytons), having been killed by the CJEU in its famous opinion C 1/09.Dec 26 17:44
schestowitzWhen the IP Federation thinks that “Landmark decisions of the Unified Court will exert some influence on judicial decisions and policy at the EPO, for example,” it forgets that the EPO is an independent granting authority as well as an authority equally able, albeit only in opposition proceedings, to decide on the validity of granted EP/UP titles. The EPO is only bound by the case law of its boards of appeal, and Dec 26 17:44
schestowitzespecially of its Enlarged Board of Appeal, and there is no mechanism which could impose on the Boards case law stemming from other courts.Dec 26 17:44
schestowitzThe possible conflict of case law between the UPC and the Boards of Appeal of the EPO has always been there, but has been superbly ignored. Exactly as the Courts of the EPC member states are not bound by decisions of the boards of appeal of the EPO, the latter are not bound by the former ones. Just think of the differences between the case law of the German Federal Court and the EPO in matters of added subject-matter. Why Dec 26 17:44
schestowitzshould it be different between the UPC and the boards of appeal of the EPO? Even if it was the opinion of Sir Robin Jacob at one of the Munich conferences on the UPC that the UPC will become the leading court in Europe. By then UK had not withdrawn from the UPC.Dec 26 17:44
schestowitzOn the other hand, the docility of the Enlarged Board of Appeal which went as far as saying that although it approved G 2/12 and G 2/13, a “dynamic” interpretation of those decisions lead to say exactly the opposite in G 3/19, does not bides well for the independence of the boards of appeal of the EPO. This decision was arrived at under the pressure of the Administrative Council and the President of the EPO. Who says thatDec 26 17:44
schestowitzcase law of the UPC would be more independent of that of the EPO when the mechanism of designation of its judges and their re-appointment is similar than the one of the members of the boards of appeal.Dec 26 17:44
schestowitzIt might be desirable to have some unification in case law in IP matters, but certainly not what is presently pushed by UPC lobbyists who ignore the letter and the spirit of the treaty they want to see entering into force. And this only to fill their pockets.Dec 26 17:44
schestowitz"Dec 26 17:44
schestowitzhttps://www.stjerna.de/restart/?lang=enDec 26 18:13
schestowitz"Dec 26 18:13
-TechrightsSocial/#boycottnovell-social-www.stjerna.de | Dr. Ingve Björn Stjerna, LL.M. | Status of the UPCA ratification proceedings in Germany (12/12/2016, latest update on 11/12/2020)Dec 26 18:13
schestowitzUpdate (25 and 26/11/, 01 and 11/12/2020):Dec 26 18:13
schestowitzOn 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 GermanDec 26 18:13
schestowitzlanguage).Dec 26 18:13
schestowitzOn 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).Dec 26 18:13
schestowitzIn 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 Dec 26 18:13
schestowitzrecommendation in Parliament printed matter 19/24742, both German language).Dec 26 18:13
schestowitzThe Parliamentary group CDU/CSU is of the opinion (Resolution recommendation, p. 4, last para.)Dec 26 18:13
schestowitz“…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 Dec 26 18:13
schestowitzto European or intergovernmental institutions.”Dec 26 18:13
schestowitzThe SPD parliamentary group thinks (Resolution recommendation, p. 5, first para.)Dec 26 18:13
schestowitz“…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.”Dec 26 18:13
schestowitzAlso 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).Dec 26 18:13
schestowitzOn 26/11/2020, the German Parliament held its second and third deliberations on the draft law and adopted it by a qualified majority (cf. the protocol, German language).Dec 26 18:13
schestowitzThe Federal Council is to take a final decision on the draft legislation in its 998th session on 18/12/2020 (cf. item 10 on the agenda, German language). The Legal Committee of the Federal Council has recommended its adoption (cf. p. 43 of the explanations on the agenda, German language).Dec 26 18:13
schestowitz"Dec 26 18:13

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