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

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● Dec 26
[17:43]	schestowitz	http://patentblog.kluweriplaw.com/2020/12/26/ip-federation-expresses-concerns-about-unified-patent-court/
[17:43]		-TechrightsSocial/#boycottnovell-social-patentblog.kluweriplaw.com | IP Federation expresses concerns about Unified Patent Court - Kluwer Patent Blog
[17:43]	schestowitz	"
[17:44]	schestowitz	we support the UPC being available to non-EU member states including the UK where political will allows.
[17:44]	schestowitz	The GFCC clarified the UPC is only open to EU member states in its March 2020 press release:
[17:44]	schestowitz	https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-020.html
[17:44]		-TechrightsSocial/#boycottnovell-social-www.bundesverfassungsgericht.de | Bundesverfassungsgericht - Press - Act of Approval to the Agreement on a Unified Patent Court is void
[17:44]	schestowitz	The Agreement is open exclusively to EU Member States.
[17:44]	schestowitz	REPLY
[17:44]	schestowitz	Attentive Observer
[17:44]	schestowitz	DECEMBER 26, 2020 AT 6:13 PM
[17:44]	schestowitz	It is very interesting to note that the Whos Who of British Industry is regretting Brexit, which is understandable.
[17:44]	schestowitz	Not 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.
[17:44]	schestowitz	It 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.
[17:44]	schestowitz	On 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.
[17:44]	schestowitz	When 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 
[17:44]	schestowitz	especially of its Enlarged Board of Appeal, and there is no mechanism which could impose on the Boards case law stemming from other courts.
[17:44]	schestowitz	The 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 
[17:44]	schestowitz	should 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.
[17:44]	schestowitz	On 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 that
[17:44]	schestowitz	case 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.
[17:44]	schestowitz	It 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.
[17:44]	schestowitz	"
● Dec 26
[18:13]	schestowitz	https://www.stjerna.de/restart/?lang=en
[18:13]	schestowitz	"
[18:13]		-TechrightsSocial/#boycottnovell-social-www.stjerna.de | Dr. Ingve Bjrn Stjerna, LL.M. | Status of the UPCA ratification proceedings in Germany (12/12/2016, latest update on 11/12/2020)
[18:13]	schestowitz	Update (25 and 26/11/, 01 and 11/12/2020):
[18:13]	schestowitz	On 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 German
[18:13]	schestowitz	language).
[18:13]	schestowitz	On 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).
[18:13]	schestowitz	In 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 
[18:13]	schestowitz	recommendation in Parliament printed matter 19/24742, both German language).
[18:13]	schestowitz	The Parliamentary group CDU/CSU is of the opinion (Resolution recommendation, p. 4, last para.)
[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 Courts jurisdiction to review compliance with minimum constitutional standards in the transfer of sovereign rights 
[18:13]	schestowitz	to European or intergovernmental institutions.
[18:13]	schestowitz	The SPD parliamentary group thinks (Resolution recommendation, p. 5, first para.)
[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.
[18:13]	schestowitz	Also 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).
[18:13]	schestowitz	On 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).
[18:13]	schestowitz	The 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).
[18:13]	schestowitz	"