Team UPC firms inside IP Kat are doing marketing (for their employers)

Summary: For the third time in less than a week, IP Kat, composed by law firms that stand to gain from the UPC (litigation galore), tries to compel British politicians to ratify and allow devastation to British businesses

THE EPO, in our humble assessment, is actually at risk from the UPC; examiners in particular (not just boards) may be made redundant by it, for reasons we explained twice in the past week. Even EPO insiders -- albeit not all of them -- agree with us on that. UPC 'reforms' aren't just about a bunch of courts; it's a systemic overhaul that warps Europe into 'litigation central' at the expense of examinations (judges and juries doing what examiners would otherwise do, at a lower expense to defendants).

"UPC 'reforms' aren't just about a bunch of courts; it's a systemic overhaul that warps Europe into 'litigation central' at the expense of examinations (judges and juries doing what examiners would otherwise do, at a lower expense to defendants)."Thankfully, at least for us in the UK, time is running out for the UPC. Tokarski and Battistelli can say whatever they want (Battistelli just keeps lying about it), but ratification is anything but trivial and it is definitely not inevitable. Today we learned about plans to initiate a demonstration against it, after a petition attracted many signatures, including dozens from CEOs. According to this pro-UPC blog, in the UK "necessary ratification must take place before the next Competitiveness Council meeting on 29th May."

But with Brexit uncertainties it's anything but possible/feasible. We don't expect that to happen. Here is the relevant bit:

Mr Tokarsky explained that everything is ready at technical level. However participating member states need to ratify the Protocol on the provisional application of the Agreement on the Unified Patent Court. Mr Tokarsky particularly insisted for the states that already have parliamentary approval to actually ratify the Protocol. He also highlighted that the necessary ratification must take place before the next Competitiveness Council meeting on 29th May. Indeed the UPC requires a minimum of six months to get ready and become operational.

We can be sure that Team UPC will kick into gear and make it seem both possible and desirable to the UK. When they speak of the "UK" they speak only about their employer, typically a law firm that profits from litigation.

"CJEU is a very big barrier here."Luke McDonagh has tweeted, "UK can participate in #UPC post-Brexit, but will it? What role for CJEU? Darren Smyth gives his informed view..."

Well, for the second time in about a week, Mr. Smyth, having promoted this beast (in UPC echo chamber/lobbying events), does more lobbying at IP Kat. Rhetorical question as headline? Check.

He quotes this from the highest authority about the CJEU in the UK: "Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation."

"...after spending years wheeling this beastly Trojan horse and publishing bogus job advertisements it would leave them looking like crooks and traitors."He then repeats a statement from Lucy, who is no longer in her job (she lasted only several months before vanishing).

CJEU is a very big barrier here. David Davis is repeatedly being quoted/cited as saying that the UK would not be subjected to 'governance' by CJEU, so that's an immediate deal-breaking statement/stance for the UPC. Should Team UPC not lay down its weapons and simply acknowledge that it's over? No, after spending years wheeling this beastly Trojan horse and publishing bogus job advertisements it would leave them looking like crooks and traitors. So instead they try to make their own delusional prophecy come true.

"Saving us the effort, readers of the blog have already beaten us to it with rebuttals."We are sad to see IP Kat repeatedly being exploited for this kind of lobbying. Battistelli must be very proud of IP Kat these days. His sanctions against IP Kat changed its tune and now we're being confronted with UPC puff pieces almost every week, sometimes several times per week.

Saving us the effort, readers of the blog have already beaten us to it with rebuttals. Smyth, for example, got caught resorting to that same old shameless spin. "I am massively impressed by the mental gymnastics from the author," said one commenter. Here is the full comment:

I am massively impressed by the mental gymnastics from the author. I particularly enjoy the part where the sentence from the white paper is quoted:

“The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK."

Then immediately reinterpreted (and rephrased) to meet the author's preferred conclusion:

"What it has said is that domestic courts should not be bound by the CJEU."

Unfortunately, this just doesn't follow. Nowhere in the statement of the government does it limit the exception to the jurisdiction of the CJEU to "domestic courts". Rather the statement is that "we will bring an end to the jurisdiction of the CJEU in the UK". This statement simply isn't compatible with UK membership of the UPC. Take the very simple example of a UK person or company infringing a unitary patent by actions that are only carried out in the UK. In that case the UK will still very much be under the jurisdiction of the CJEU.

Another comment spoke about CJEU:

That's too narrow an interpretation. The quote says "... the jurisdiction of the CJEU in the UK". That means the ability of the CJEU to apply law that has an effect on matters taking place in the UK. In making a decision on for example, a matter of infringement of a European patent in respect the UK, the UPC is absolutely acting as a domestic court and thus the CJEU is exercising jurisdiction in the UK. There is an inconsistency here and the more likely explanation is that the government is in a mess, not that it has a cunning plan.

Another noteworthy comment (not from Team UPC):

Despite the opinion from Gordon and Pascoe, it is still far from certain that the UK and remain in the UPC post-Brexit.

A lynchpin of the Gordon and Pascoe opinion is the conclusion in the following quote.
"If the UPC were truly part of the Union legal order, it would already be subject to these obligations without them needing to be spelled out in the Agreement. Whilst Article 1 of the UPCA and Article 71a of the Brussels Regulation designate the UPC as a “court common to a number of Member States”, we do not consider that such secondary legislation is capable of converting the UPC’s fundamental status as an international court into that of a court which is part of the national legal order"

However, I have serious doubts about the legitimacy of that conclusion.

The main focus of the CJEU's Opinion 1/09 was upon the question of supremacy of EU law (and the mechanisms for ensuring that supremacy). The main mechanisms by which supremacy of EU law is enforced in a particular country are membership of the EU and the ability of national courts to make references to the CJEU.

The first of these mechanisms will of course no longer apply to the UK post-Brexit.

The trouble for Gordon and Pascoe is that, if their conclusion is correct, then the second mechanism will disappear as well.

Think about it: how could an "international court" refer questions to the CJEU if that court is not a court common to the EU Member States?

Remember that the ability to refer questions to the CJEU is restricted by Article 267 TFEU to "any court or tribunal of a Member State".

If I am missing something, then I would be glad to hear what it is. Otherwise, it seems that the UK most definitely cannot participate in the UPC post-Brexit... unless, of course, no one is bothered about compliance of the UPC Agreement with EU law.

This point also provides an answer to Darren's question regarding how frequently the UPC will refer questions to the CJEU. That is, the ability of UPC to refer questions to the CJEU presupposes that the UPC will be bound by the provisions of Article 267 TFEU. The upshot of this is that the UPC Court of Appeal will have no choice but to refer questions to the CJEU when the decision of the Court hinges upon a provision of EU legislation that has no clear and unambiguous interpretation.

I suspect that references will be very common indeed. This is primarily because I have not met anyone yet who can provide me with definitive answers as to how Article 5(3) of Regulation 1257/2012 will work in practice. To be frank, my view is that anyone who thinks that this will all be clear-cut has obviously not thought things through!

"Dear UK lawyers," said the following comment, "the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with" (right on the money).

Here is the full comment:

The comment looks interesting and it looks at first sight, indeed quite convincing. The UPC not being a UK court, but an international court, UK can stay in the UPC after Brexit.

The contrary seems true for different reasons:

1) the UPC is strictly reserved to member states of the EU. There is not much which can be said more. Any attempt to change this , for instance by the Administrative Committee amending the UPCA, is doomed to fail as any possible amendments can only have the aim to bring the UPCA in line with an international treaty relating to patents or Union law. Not only the preamble makes reference to Union Law, but as well the Art. 5, 20, 21, 27,31, 32, 84 and 85 (the list does not pretend to be exhaustive) refer directly or indirectly to Union Law. And a non-EU member can participate? Sorry but the time for April's fool jokes is over.

2) Even if for the sake of argument one could accept that the UPC is not a UK court, its decisions will have a direct impact in UK, once a judgement of the UPC is to be enforced in UK, or a judgement of the local court or the London section of the Central Division will have to be enforced, whether in UK or abroad. Once UK leaves the EU Brussels 1 will not any longer applicable to judgements of the UPC in UK. Up to now, there is nothing to give the impression that this point has been taken seriously by the proponents of the stay of the UK in the UPC post-Brexit.

3) The comparison between EP patents and the UP Patents is not convincing at all. The EPO grants patents, and stops there. The EPC does not say anything else, beside the fact that, in principle, the reasons for nullity in front of a court in a member state of the EPC are the same as the grounds of opposition. The aim of the EPC was never to go any further. The UPC deals with the fate of a patent granted, like presently any other court in a member state of the EPC.

4) That no patentee is obliged to use the UPC is OK as long as there is an opt out possibility, that is for at least 7 years, and then to a maximum of 14 years. After this time any EP patent be it with or without unitary effect will end before the UPC for all member states of the UPC, i.e. for all member states of the EU having ratified. This argument is very weak.

I cannot remember if it was in this blog or in another one, that there was talk of having the cake and eating it.

Dear UK lawyers, the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with. It is sad for you, but unavoidable and any contortions trying to be in with being in are in vain.

"Nice try to claim the UPC is an international court but it is an EU court," said another comment about this lobbying effort.

Patentees in the Uk owuld only have the choice if the UK government gives it to them. Allowing one section of society to be under the jurisdiction of the EU seems contrary to the government position.

Aside from that, not all patentees are UK citizens so the UK surely cannot allow non-UK-resident patentees the right to obtain UK property rights that are not subject to the jurisdiction of the UK courts?

Nice try to claim the UPC is an international court but it is an EU court, which is why it is under the CJEU. We could try and get round many hurdles by creating 'international bodies' in this way, but I doubt it will wash. The EMA for example may be one such body we could do with not leaving.

And in response to that:

It is "under" the CJEU in the same way as the English courts and UK Supreme Court are at present. Are you suggesting that the English Court are EU courts even when deciding on national law. Do you consider the Miller Art 50 judgement to be the work of an "EU" court. Seems a strange catogorisation to me.

"The Brits have been painstakingly building this folly for many years," said the following (yes, a lot of Team UPC is based in London), "and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening."

Good.

Reading all of this reminds me of the final scene of "The Bridge On The River Kwai".

"Madness......just madness!"

The Brits have been painstakingly building this folly for many years and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening.

The last thing anyone needs is for the train to leave the station and make its way on to the bridge....

Here is a claim that CJEU is merely a "red herring both legally and politically." But how is that so? The situation here is rather simple; can a court that does not even speak English tell a company in Britain (post-Brexit) what to do? That would make as much sense as a Chinese or a US court ordering an injunction inside the UK. Here is the full comment:

The CJEU's role is mostly a red herring both legally and politically. The UPC clearly cant be issuing remedies to be enforced in EU countries that are contrary to EU law and the CJEU is there to prevent that. Unless an invention relates to the Biotech directive the CJEU will have very little influence on what happens can or cant be done in the UK.

The political angle is also a overplayed- Carswell's early day motion didn't get any other backers. What happens to the UK in the UPC will be wrapped up with the big Art 50 deal. When the Art 50 deal is completed -what happens to the UPC isn't going to be a primary talking point with those that hate the EU.

Carswell is a Conservative who moved to UKIP and left UKIP (he is now an independent). Trying to cast anti-UPC as anti-EU is as dishonest as it gets. I, for example, am against the UPC for practical reasons and I am also pro-EU for practical reasons. One can cogently be both. A lot of UPC foes can say the same about themselves.

"I, for example, am against the UPC for practical reasons and I am also pro-EU for practical reasons."The one point which is easier to agree on is, UPC will barely be on the agenda in Brexit negotiations. It will likely be abandoned or thrown/fall by the wayside, as much higher priorities exist. ⬆