Bonum Certa Men Certa

Dr. Ingve Björn Stjerna: UPC's “Entry Into Force is Not at all Secured,” Contrary to What Team UPC Says

False predictions sometimes have an agenda

New York Times on Clinton
Reference: How Data Failed Us in Calling an Election (New York Times)



Summary: The ludicrous notion that the UPC is inevitable and just a matter of time is challenged by longtime UPC observers, including Dr. Ingve Björn Stjerna, who wrote an entire book on the subject

WRITING FROM Düsseldorf for the blog of a fellow German, Florian Müller, Stjerna, whom we respect for his honesty on the UPC (unlike other people in his field), makes a list of barriers to the UPC (other than Spain's longstanding opposition). Stjerna already published a book on the subject, but this new article deals specifically with the latest barriers to the UPC (there are more). Here are some excepts:



The European Unified Patent Court: what can still go wrong?



[...]

III. Contradictions in recent UK government statements

Nonetheless, the UK government seems to be eager to ratify the UPCA, relying on said concept of emphasizing the UPC's formal status as an international organization and rather closing their eyes on the Union law obligations inevitably tied to it. After a statement on how the UK intended to proceed in terms of the UPCA after the "Brexit" vote had been long in the waiting, it was announced at the end of November 2016 at the EU Competitiveness Council meeting that the UK "is proceeding with preparations to ratify the Unified Patent Court Agreement", pointing out that "The UPC itself is not an EU institution, it is an international patent court." (cf. the press statement here).

This approach was also followed in a recent meeting of the Science and Technology Committee of the UK House of Commons in a statement by the new "Minister of State for Universities, Science, Research and Innovation, Department for Business, Energy and Industrial Strategy", Joseph Johnson, who is also responsible for intellectual property aspects (cf. footage here, starting at 11:07.22). Indicating once more that the UPC was "not an EU institution" and describing it as being "independent of our membership in the European Union", Mr Johnson started to flounder when asked whether non-EU members could remain members of the UPCA and just answered: "These are questions which will form part of the bigger discussion around the Brexit negotiations."

In short, the plan of the UK government appears to be ratifying the UPCA without knowing whether a continued membership will be possible after a withdrawal of the UK from the EU. Bearing in mind the industry's overarching fundamental need to be provided legal certainty on questions like these, this is a remarkable approach and reaffirms the impression of a reform for a reform's sake.

[...]

IV. Violation of German Constitutional law?

Apart from the "Brexit" implications, further obstructions to the UPCA's entry into force may well happen in the ratification procedure in Germany, the German ratification, as indicated, also being required for the UPCA to come into effect. The ratification procedure was initiated by the German government at the end of May 2016, with the first reading in the German Parliament taking place in the late evening of 23 June 2016, the day of the "Brexit" vote in the UK, only to be suspended immediately afterwards. Despite its limited practical use due to its apparent bias, the mentioned Gordon/Pascoe Opinion has – unintentionally, as it would seem – underlined the UPCA's doubtful compatibility with Union law by noting that the political approach to align the two after the aforementioned CJEU decision in 2011 is merely an unworkable legal fiction, thereby joining sides with a number of commentators who have been arguing that the UPCA was incompatible with Union law for a number of reasons all along. More details can be found in the aforementioned article "Unitary patent and court system – The Gordon/Pascoe Opinion and the UPCA's incompatibility with Union law" here.

The specific relevance of the German ratification proceedings for this aspect lies in the fact that, in Germany, it is, in principle, possible to directly subject any legislative act approving an international Agreement to judicial review by the German Constitutional Court for its compatibility with the German Constitution before it will be allowed to enter into effect. The UPCA's doubtful compatibility with Union law is only one of a number of aspects on the basis of which its compatibility with the German Constitution might be challenged. Should judicial review indeed be requested on this basis, the German Constitutional Court will usually request a preliminary ruling from the CJEU on the Union law issues in question. Should the CJEU confirm the understanding that the UPCA is incompatible with Union law, this could well be the end of the UPCA, at least in its present form. As the legal effectiveness of the two European regulations on the "unitary patent" and its translation regime is bound to the UPCA's entry into force, the whole reform would be affected by such finding. Thus, such judicial review procedure could well constitute yet another major obstacle on the way to making the UPC a reality.


IAM, a proponent of the UPC (and the EPO that keeps promoting it), says about the above that it's a "thought-provoking article. UK UPC ratification looks increasingly like a bargaining tool for a wider negotiation."

"We don't expect the UPC to become a reality; not in its current form and certainly not in the UK."What we quite like is the conclusion of Stjerna. Just like us, he takes note of misleading claims from Team UPC and opportunistic politicians who serve it (people like Michel Barnier). To quote: "Ultimately, different from what political circles and the usual UPC proponents want to make the public believe, the UPCA's entry into force is not at all secured. Major political as well as legal decisions may still have to be made before the UPCA, and with it the European patent reform, will be allowed to come into effect."

We don't expect the UPC to become a reality; not in its current form and certainly not in the UK. Don't be easily bamboozled by all that fake news yanked out so habitually by Team UPC.

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