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| schestowitz | http://patentblog.kluweriplaw.com/2019/11/07/paper-ep-cjeu-opinion-1-09-doesnt-exclude-non-eu-member-states-from-upc/#comments | Nov 09 15:38 |
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| schestowitz | " | Nov 09 15:38 |
| schestowitz | The “paper” issued by the Policy Department for Citizens’ Rights and Constitutional Affairs is quite interesting, but it does not really correspond to historical facts, and some of the statements it contains are simply incorrect. | Nov 09 15:38 |
| schestowitz | The story of a Unitary Patent started quite early after the creation of what was then called the Common Market. As patents are monopolies, they can hinder free circulation of goods between member states. There exist a few drafts of a European Patent Convention, but at the time it was only opened to members of the CM. Some problems were apparent: forum shopping, language, important countries in IP were not at the time member of the CM. | Nov 09 15:38 |
| schestowitz | In the meantime, the CJEU had dealt with the fractioning of the CM with patents with the famous exhaustion of patents rights within the CM. And the CM, and later the EU lived happily with this. There was, and there is still, no pressing need for an EU unitary patent even if from a theoretical point of view it could prima facie appear interesting. | Nov 09 15:38 |
| -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Paper EP: CJEU Opinion 1/09 doesn't exclude non-EU member states from UPC - Kluwer Patent Blog | Nov 09 15:38 | |
| schestowitz | It is under the pressure of the PCT, that the negotiations were reopened and it ended up with two conventions. The first one, the Munich EPC aimed at a centralised grant procedure open to members and non-members of the CM. The second one, the Luxemburg Convention of 1975, aimed at exercising the rights stemming from a patent granted by the EPO within the EU. This Convention was dead-borne as the problems of forum shopping and of language were | Nov 09 15:38 |
| schestowitz | not solved. | Nov 09 15:38 |
| schestowitz | One wonders why in 2009, “it had become clear that a whatsoever European Patents Court would have to be based on an agreement outside EU regulations, and rather require the ratification by the Member States and take place in full compliance with their respective constitutional requirements”. What was meant here was EPLA, and since EPLA wanted to embrace non-EU members, the only possibility was to “require the ratification by the Member | Nov 09 15:38 |
| schestowitz | States”. | Nov 09 15:38 |
| schestowitz | EPLA was thus the continuation of the EPC, including non EU Member States, but in its famous Opinion 1/09, the CJEU considered that it does not fit in the EU legal system. | Nov 09 15:38 |
| schestowitz | Whether the UPCA fits in the EU legal system has never been decided as the draft UPCA was never submitted to the CJEU for opinion. One wonders why? We just have the assurance of its promoters that it does, but this seems a bit short of convincing other people. | Nov 09 15:38 |
| schestowitz | The “paper” gives an interesting insight. Without UK, the “three Member States in which the highest number of European patents have effect would be Germany, France and the Netherlands”, and not Italy. What about Italy’s claim for Milan instead of London? | Nov 09 15:38 |
| schestowitz | It is also surprising that the European Parliament had to rely on data from Patently.com. Why was it not possible to obtain the data from EPO? | Nov 09 15:38 |
| schestowitz | The “paper” seems totally mistaken when it states that “Power of appeal decisions is taken away from EPO and it’s Boards of Appeal (see above 1.) which loses its quasi monopoly, as it will be a Court and finally the Court of Appeal which will review the decisions of the EPO (objections to granted patents. or refusing an application). I have up to now never seen anything so beside the point. I do not expect to find such statements in | Nov 09 15:38 |
| schestowitz | an “in-depth” analysis. | Nov 09 15:38 |
| schestowitz | It is clear that the proponents of the UPC want the number of oppositions to decline, so as to give precedence to the UPC, but in view of alone of the difference in fees, it might not be as simple as that. Here I am thinking of SME’s. With a proper staffing level the Boards of Appeal could deal more swiftly with appeals, especially in opposition. No need to say why the staffing level of the Boards is so appalling….. | Nov 09 15:38 |
| schestowitz | The EPO boards of Appeal will conserve their monopoly for deciding refusals of applications and the maintenance or not of patents after an opposition. | Nov 09 15:38 |
| schestowitz | The only thing which is certain, is that we will end up with a conflict of case law, as both the Boards of Appeal of the EPO and the UPC have a say when it comes to appreciate the validity of a patent after grant. If an opposition is filed within 9 months of the grant, then the EPO is competent, after this it will be the UPCA. If a declaration of non-infringement is requested before the EPC and at the same time an opposition is pending or | Nov 09 15:38 |
| schestowitz | filed, the UPC can stay the proceedings, but is not obliged to do so. It could well be that the UPC decides on validity in a way contrary to the case law of the Enlarged Board. What is then left with the “certainty” so important to the managers of the EPO? | Nov 09 15:38 |
| schestowitz | Compared with this problem, the problems linked with Brexit are nearly irrelevant. The only thing one can agree with the “paper” is that once the UK has left the EU, it cannot participate any longer in the UPC, unless it accepts the primacy of EU law and decisions taken by the CJEU as last instance. Has the drafter asked the UK PMs opinion on this point? | Nov 09 15:38 |
| schestowitz | I would agree that the “paper” mentions that Opinion 1/09 “is partly read so that membership of the new system is open only to EU Member States. On the other hand, there is an increase in the number of votes that want to show a right-dogmatic way of facilitating the participation of the United Kingdom (and possibly other non-EU countries in the future as well)”, but this is not what the paper actually says. | Nov 09 15:38 |
| schestowitz | When properly reading the “paper”, I fail to read in Point 3.4 that the “CJEU Opinion 1/09 doesn’t exclude non-EU member states from UPC”. I rather read “Although the CJEU did not expressly say that the UPCA may only be lawfully entered into between EU Member States ….and its consideration 14 now provides explicitly: “…this Agreement should be open to accession by any Member State of the European Union…. By making that | Nov 09 15:38 |
| schestowitz | clear, the contracting states might have removed any legal doubts concerning the compatibility of the Agreement with the TEU and TFEU (see also Art. 2 lit b) of the Agreement=EPLA).” What else has to be said? | Nov 09 15:38 |
| schestowitz | That according to Annex 1 of the “paper”, there are around 520 000 EPO patents from EU origin ranked by number currently in force is an interesting figure. Another also interesting figure would have been the number of EPO patents from non-EU origin ranked by number currently in force. When one sees that, according to official figures of the EPO, patents granted by the EPO to EU members are barely a third of all the patents granted by the | Nov 09 15:38 |
| schestowitz | EPO, one wonders how the UP and the UPCA is benefiting to European Industry in general and European SMEs in particular. | Nov 09 15:38 |
| schestowitz | The drafter of the present blog is for sure a strong proponent of the continued participation of UK in the UPC, for whatever reason, but this is not a reason to make statements which are only in favour of its point of view. A more objective reading of the “paper” would be welcomed. After all the “paper” has made clear that there are many legal hurdles to the post Brexit participation of UK in the UPC. It is too easy to merely claim | Nov 09 15:39 |
| schestowitz | that “if there is will, there is a way” to quote another heavy proponent of the UPC. | Nov 09 15:39 |
| schestowitz | " | Nov 09 15:39 |
| schestowitz | http://ipkitten.blogspot.com/2019/11/can-uk-become-and-stay-member-of-upc.html | Nov 09 16:20 |
| schestowitz | " | Nov 09 16:21 |
| schestowitz | Friday, 8 November 2019 at 20:09:00 GMT | Nov 09 16:21 |
| schestowitz | It is not correct to say that “German ratification has been held up by an esoteric legal challenge to the UPCA in the German constitutional court”. What is esoteric if a citizen complains about the lack of respect of the Constitution of its country in the ratification process of the EPCA? It is not only a question of whether there was the necessary quorum for the ratification, but more fundamental questions have been raised. | Nov 09 16:21 |
| schestowitz | Do you honestly think that the German Constitutional Court would have requested the President of the Republic not to sign the ratification act if it would have been for some esoteric challenge? For more than two years the proponents of the UPC, especially the British ones, have stated that the FGCC would decide imminently. | Nov 09 16:21 |
| -TechBytesBot/#techbytes-ipkitten.blogspot.com | Can the UK become and stay a member of the UPC? - The IPKat | Nov 09 16:21 | |
| schestowitz | Now it is for the beginning of 2020. What established fact or statement authorises this assurance? The GCC publishes a list of cases it intends to decide in the coming year. There is however no obligation whatsoever to abide by it. (Btw I take bets it will be the same before the Boards of Appeal of the EPO). | Nov 09 16:21 |
| schestowitz | When one looks at the situation before the GCC, there are older complaints about the independence of the Boards of Appeal of the EPO. Before deciding on the UPC, it appears logical to decide first about the EPO, as a UP is a patent granted by the EPO. | Nov 09 16:21 |
| schestowitz | That Brexit might be a historical mistake is one thing, but the EU paper explains why it is “highly questionable that the UK itself would accept the arrangements of Article 20 and Article 21 for the UPCA which foresee the primacy of EU law and its application…as the end of the jurisdiction of the CJEU in the UK was one of the main intentions of the whole Brexit process”. | Nov 09 16:21 |
| schestowitz | The “paper” can be found under the following URL: | Nov 09 16:21 |
| schestowitz | https://www.europarl.europa.eu/RegData/etudes/IDAN/2019/596800/IPOL_IDA(2019)596800_EN.pdf | Nov 09 16:21 |
| schestowitz | Whether Merpel “does not remember “the end of the jurisdiction of the CJEU” being on her Brexit referendum ballot paper” is therefore irrelevant. If the Tories do not reach the majority of seats in Westminster will be clear after December 12th. Any conjecture about this seems premature. | Nov 09 16:21 |
| schestowitz | If Brexit was not “all about not applying EU law any more”, what is it then good for? Cat N° 10 has anything in mind but to accept supremacy of EU law. But even if Art 50 is revoked, do you in all honesty think that the other member states will continue allowing the UK to have a special status? You cannot be member of a club and only want to abide by the rules you think are favourable to you, and disregards the other. | Nov 09 16:21 |
| schestowitz | The “paper” simply looks at the situation as it is known presently. The paper contains however a heavy mistake. At the end of Point 2.3, the “paper” states that “Power of appeal decisions is taken away from EPO and it’s Boards of Appeal (see above 1.) which loses its quasi monopoly, as it will be a Court and finally the Court of Appeal which will review the decisions of the EPO (objections to granted patents. or refusing an | Nov 09 16:21 |
| schestowitz | application). This is anything but correct. | Nov 09 16:21 |
| schestowitz | Here again, any straw which swims by is grasped by the UPC proponents, but they fail to convince in many aspects. It is getting tiring to be confronted with such wishful thinking. A corresponding blog has just been published on Kluwer Patent Blog. | Nov 09 16:21 |
| schestowitz | http://patentblog.kluweriplaw.com/2019/11/07/paper-ep-cjeu-opinion-1-09-doesnt-exclude-non-eu-member-states-from-upc/ | Nov 09 16:21 |
| schestowitz | ' | Nov 09 16:21 |
| -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Paper EP: CJEU Opinion 1/09 doesn't exclude non-EU member states from UPC - Kluwer Patent Blog | Nov 09 16:21 | |
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