THE EPO barely mentions the word/term "UPC". Neither does the media. It's dead.
RIP
When the UPCA was drafted and signed, the UK’s involvement and the establishment of part of the central division in London were key feature. That the agreement could be open to non-EU members had never been envisaged. Brexit radically undermines these fundamental elements and, at best, the terms of the agreement need to be changed in a yet undefined way. So how can it be that the ratification of an agreement that has become obsolete and no longer reflects the will of its authors is still a topic in those countries that have fortunately not yet done so? And why on earth should the GCC submit such an outdated agreement to the CJEU in the circumstances?
Dear proponents of the UPC and the post Brexit membership of UK,
When I see the problems which have led to an enquiry of of the Justice Sub-Committee of the House of Lords’ EU Committee, see
http://ipkitten.blogspot.fr/2017/12/role-of-cjeu-post-brexit-to-be.html
with respect of UK courts, I would like to hear why there are no problems with the UPC, which first, does not exist yet, and, secondly does not seem concerned by the enquiry, as it is not a UK court.
Please abstain from the standard reply: because it is an international court. If difficulties are foreseen in respect of enforcement for UK courts, it is hard to understand why an international would not be exposed to the same difficulties post Brexit.
The Lords seem to be concerned by legal certainty. Where is the legal certainty for the UPC?
It does not seem that the UPC was mentioned in Phase 1 negotiations, so it is unlikely to be mentioned in Phase 2 negotiations, which should start soon. Quo vadis UPC?
I am interested in your comment that “It rationalised correctly, however, that the UPC was an international court”. Am I correct to interpret this as meaning that you agree with Gordon & Pascoe’s characterisation of the nature of the UPC (as an “international court”, as opposed to a Benelux-style “court common to the (EU) Member States”)?
If so, could you please explain to me how the UPC can possibly refer preliminary questions to the CJEU? As I understand it, a court is only able to access the procedure under Article 267 TFEU if it is “a court or tribunal of a Member State”. If the UPC is an international court, then this would appear to take it out of the ambit of Art. 267… which would then appear make the UPC non-compliant with EU law.
I may be missing something here, and so any clarity that you can help to bring to this situation would be much appreciated.
Worth reading and linking together are the article on Kluwer and the comments posted on that article.
http://patentblog.kluweriplaw.com/2017/12/08/brexit-deal-means-unitary-patent-system/
For me, SPC law is more important than the UPC. The interpretation of the SPC as absorbed into UK law must still follow the EU approach until it is re-written by parliament. Likely, UK judges will rely on CJEU judgments, both existing and post-Brexit. Referrals to the UK Supreme Court may be required, but may be unwise as there is not even a part-experienced patent judge on the panel. Referrals to the CJEU, if not possible, would leave UK judges to make up their own minds - not a bad thing, possibly.
It appears clearly the their Lordships are worried about legal certainty after the Brexit, and hence their enquiry. This applies to U.K. courts, especially their relationship with the CJEU and in matter of enforcement.
Not a word about the UPC! As it does not even exist, no wonder.
Could at least one of the UPC zelotes explain where they find any form of legal certainty in the post Brexit participation of the UKin the UPC, especially when it comes to enforcement? Please do not come up with the worn out argument it is an international court, and the Administrative Committee of UPC will fiddle a bit, so that everything will be honky dory!
Apparently no word about the UPC in Phase 1 negotiations, so nothing about the UPC in Phase 2.
As another blogger said, the UPC is barely a blip on the government radar.
Dear zelotes, wake up to reality, it is better for you. It will hurt, that is the only certainty. My grand father used to say, that if you stick your head in the ground, do not be surprised that you then get your bottom smacked! Still valid today.