04.29.18

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Even Vocal Proponents of the Unified Patent Court (UPC) Admit That There Are ‘Holes’ in the Announcement From Sam Gyimah

Posted in Europe, Patents at 3:07 am by Dr. Roy Schestowitz

Be sure to look ‘under the hood’

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Summary: A couple of days after Team Battistelli and Team UPC pretended that everything was back on track for the Unified Patent Court Agreement (UPCA) people are still talking about many issues associated with the announcement, calling it “a good PR coup”

HAVING already published 3 articles about ‘ratification’ of UPC in the UK [1, 2, 3], we must revisit the subject in light of new information. UPC booster Darren Smyth, who prematurely belittled our analysis of the situation, now highlights issues with the ‘ratification’ (also see the reply to him).

This can make the minister “look like a mug” as we say here:

I have noticed that the UK ratification of the UPC Agreement has a reservation that Article 4 (giving Court legal personality) shall not apply in the provisional period:
http://www.consilium.europa.eu/en/documents-publications/treaties-agreements/ratification/?id=2013001&partyid=GB&doclanguage=en …
It seems to have been a reservation made when the Protocol on Provisional Application was signed by UK, but I don’t remember any comment at the time and I had not noticed this before.
Any idea what is the reason for this reservation? It seems to be difficult to set up a Court in London if it does not have legal personality there…

He later added the same comment here (where there’s heavy censorship by Team UPC/Bristows, so we’re assuming many comments may have been deleted).

The reply is more important:

That last comment from Darren Smyth puts me in mind of what we used to do when we were children, and needed to promise to do something, when we had no intention of keeping that promise.

The trick was to keep your fingers crossed, behind your back, when you made your promise.

What else but the good old “fingers crossed ” trick is this UK “reservation” I wonder.

And much later came another reply:

A very interesting comment from Darren Smith.

It brings other questions to mind:

- even if the reservation is only provisional, how can the liability of the Court, as provided in Art 5 UPCA be guaranteed?

- the same applies to the Liability for damage caused by infringements of Union law as provided in Art 22? I read “The Contracting Member States are jointly and severally liable for damage….

By Member states only member states of the EU are meant!

My conclusion: The announcement is a good PR coup, but we could not see the fingers crossed in the back of Mr Sam Gyimah!

If it was merely a “PR coup”, then we know who was fastest to exploit it: Team Battistelli and Team UPC, notably Bristows, which wrote no less than 4 ‘articles’ about it!

“Num[ber] 10 [British government] is leveraging “efficient” EU membership,” Josep Maria Pujals, a lawyer from Terrassa (Spain), joked in relation to this UPC ‘ratification’ which Brexit immediately thwarts (those two things are evidently not compatible).

Heuking Patent Law Team also said that “UPC is a project of Enhanced Cooperation of EU member states which want to go one step further in the European integration than other member states. It will inevitably result in fundamental frictions when a leaving member state participates in an Enhanced Cooperation.”

Going back to the aforementioned comments thread, UPC is being compared to the Titanic:

…the stern of the Titanic is rising, the band is playing, and Mr Gyimah MP provides a statement like: “Ratification of the UPCA will keep the UK at the forefront of influencing the international system.”

I do not have a lot of confidence in many German politicians, but why would any sane negotiator run and act after reading a statement like: “The unique nature of the proposed court means that the UK’s future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU.”

This clearly translates as: No ratification in Germany equals one messy bargaining chip less.

Then the Isle of Man was brought up:

What puzzles me is how the Isle of Man is included. They wanted to be in if possible, and the statutory instrument clearly speaks about including the Isle of Man in the ratification (7.5-7.7 in http://www.legislation.gov.uk/uksi/2017/162/pdfs/uksiem_20170162_en.pdf).

However, no information on inclusion of or extention to the Isle is included on the depositary website… and the UPC agreement is silent on extensions, which makes the status of the Isle very unclear.

Any thoughts?

All in all, taking stock of all these comments, it clearly looks like Britain wasn’t entirely sincere about this ratification. Gyimah just sought to score some points on a 'special' (to the 'IP' maximalists) day.

“Concerned about the practicalities” wrote this:

Enforcement ultimately means this: can an injunction be enforced if the party against whom it was made does not comply? Or can a costs award (or damages award) be enforced against assets in a jurisdiction?

Under the English system if a party does not comply with a court order, the ultimate enforcement lies in contempt proceedings (for injunctions) and orders over property (for monetary awards – as you cannot be put in prison for not paying your debts under the English system). Contempt proceedings can allow a court to award fines or imprisonment (maximum two years). These end enforcement mechanisms are what ultimately means court orders are followed. The UPC system does not set up any equivalent system, nor could it. So recognition of judgments is essential as without that the underlying English legal system won’t be able to enforce.

Brexit is then brought up among other comments (in a ‘sanitised’ thread that discourages/deletes UPC-hostile comments):

Question: if the UK somehow (magically) manages to stay in the UPC post-Brexit, what are we to make of Articles 5(3) and 7(1) of Regulation 1257/2012?

“The acts against which the patent provides protection referred to in paragraph 1 and the applicable limitations shall be those defined by the law applied to European patents with unitary effect in the PARTICIPATING MEMBER STATE whose national law is applicable to the European patent with unitary effect as an object of property in accordance with Article 7.”

“A European patent with unitary effect as an object of property shall be treated in its entirety and in all the participating Member States as a national patent of THE PARTICIPATING MEMBER STATE in which that patent has unitary effect and in which, according to the European Patent Register:
(a) the applicant had his residence or principal place of business on the date of filing of the application for the European patent; or
(b) where point (a) does not apply, the applicant had a place of business on the date of filing of the application for the European patent.”

Of course, after Brexit, the UK will no longer be an EU (Participating) Member State – and so will become irrelevant for the purposes of Articles 5(3) and 7(1). Thus, it seems that the UPC will NEVER apply UK national law to “unitary” patents.

This could be bad news for those wishing to conduct clinical trials in the UK, as it will make it impossible to argue that the UK’s (extremely broad) “Bolar” exemption represents a defence against infringement of a “unitary” patent … even if the alleged infringement takes place in the UK and the patent proprietor has their (principal) place of business in the UK.

So, all of the legal effort expended to make the UK a go-to destination for conducting clinical trials will have essentially been rendered pointless. Not quite the “taking back control” of our laws that the Brexiteers had in mind, I’m sure!

British media did not cover this as much as we expected. Maybe it will next week; maybe it won’t. But we certainly hope that fact-checking will accompany any such endeavours.

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