(UPDATED) Industry organization Eurochambres and the British Chambers of Commerce (BCC) have written a joint letter to UK Business Secretary Greg Clark, calling on the UK government to help ensure that the Unitary Patent system becomes a reality as soon as possible.

The letter was sent earlier this week, prior to the meeting of the EU Competitiveness Council of 29 and 30 May 2017. According to the letter, Eurochambres and the BCC ‘welcomed the statement of the UK at the November 2016 Competitiveness Council that it would proceed with the ratification of the Unified Patent Court (UPC) Agreement’, despite the Brexit vote of 23 June 2016.

‘This, in turn, led to the encouraging forecast of the UPC Preparatory Committee that the Court, and consequently also the Unitary Patent, would materialize by the end of 2017.

However, it has now come to our attention that the UK will not be in a position to deposit its ratification of the UPC Agreement until after the forthcoming general election due to the dissolution of the Parliament. It is also (…) possible that the deposition process might thereafter be further delayed for procedural reasons.

Without entering into the constitutional and political machinations, our message is simple: we encourage the UK Government, both before and after the election, to continue to play a constructive and active role in ensuring that the Unitary Patent becomes a reality as soon as possible. Whether the UK is an EU member state or not and regardless of the terms agreed for future EU-UK relations, British businesses and the British economy can enjoy the benefits of a new, unified patent system.’

In the last paragraph, the letter refers to uncertainty about the UK’s role in the Unitary Patent system post-Brexit. There are no signs that a new UK Government will not proceed with UPCA ratification, but it is a possibility. The issue could also become part of the Brexit negotiations, which would mean the ratification could be delayed by two years. Both if a post-Brexit UK stays or doesn’t stay in the UP system, the agreements concerning the UP and UPC will have to be adapted.

UK Parliament was expected to finalize its part of the ratification process of the Unified Patent Court Agreement (UPCA) this month. The early general elections led to the dissolution of Parliament however, and the procedure can now only be completed just before or otherwise after the summer break of Parliament.

Once it is clear if and when the UK ratification process in Parliament will be completed, the Preparatory Committee is likely to review the time schedule. It Is widely expected the start of the UP system will be delayed until somewhere in the first months of 2018.

The UK’s participation is indispensable for the start of the UP and UPC. With France and Germany, the UK is one of three member states that have to ratify the PPA and UPCA before the system can launch. France has already done this, in Germany the ratification process has been progressing according to plan.

Apart from the delay in the UK, there is yet another issue that will have to be resolved: the Protocol on Provisional Application has not yet been ratified by the required number of member states. As Eileen Tottle, head of the secretariat of the Preparatory Committee explained earlier this year: ‘We need 13 UPC member states, including France, Germany and the UK, that have 1) ratified or received parliamentary approval to ratify the UPCA ánd 2) approved or declared to be bound by the PPA. Apart from Germany and the UK (…), we need two more member states to qualify for this.’ Totlle said she expected Greece to ratify both the UPCA and the Provisional Protocol after the Easter recess, but so far this hasn’t happened.

In a separate letter with ‘comments on some of the key elements due to be discussed at the Competitiveness Council on 29-30 May’, Eurochambers –  representing over 20 million enterprises in Europe, mostly SMEs, according to its website – points at this problem: ‘(…) we urge those member states that still need to take measures to allow for the entry into provisional application of the UPC Agreement to proceed with these as quickly as possible in order to avoid any delay. There are clearly legal and procedural constraints in several member states, but we trust and hope that these can be overcome if there is the political will to finally allow European Business to benefit from this important and long overdue reform.’

It’s worth mentioning that in a post on this blog yesterday, Thorsten Bausch of Hoffmann Eitle points out that the real problem for the UP system may not be the UK, nor the lack of ratifications of the PPA, but the German Federal Constitutional Court. Later this year, the Bundesverfassungsgericht intends to hear four constitutional appeals, in which the basic framework of the EPC will be challenged as not being compatible with the German Constitution. ‘If the UPCA were to be ratified in, say, September and if two months later the European Patent Convention were to be declared unconstitutional, this might also pull the rug out from under the UPCA. The resulting mess could have epic dimensions.’

For regular updates on the Unitary Patent and the Unified Patent Court, subscribe to this blog and the free Kluwer IP Law Newsletter.

This article was updated to correct and delete the mistake Wouter Pors refers to in his comment hereunder: UK approval of the Protocol on Provisional Application is not missing.

 

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4 comments

  1. Sorry, but the UK approval of the Protocol on Provsional Application is not missing. 2 more countries are needed for the protocol to enter into force, but those are not the UK, France or Germany. Hopefully, this will be resolved on or around 29 May.

    The UK can ratify the UPC Agreement and participate in both the UPC and the Unitary Patent until Brexit. There is no indication whatsoever that this would become part of the Brexit negotiations and that wouldn’t make sense anyway. The UK government has confirmed twice that it will proceed with ratification. Upon Brexit, only some minor changes to the UPC Agreement are needed, but these can be made by the Administrative Committee under article 87 section 2 of the UPC Agreement (see earlier publications on this issue). Indeed, there needs to be an additional protocol under article 142 EPC to allow the UK to keep participating in the Unitary Patent, but that should be achievable too.

    I agree with prof. Bross that the EPO Boards of Appeal are not sufficiently independent and this has even become worse due to the recent changes. However, it is not realistic to assume that therefore Germany should not accecpt the EPC after it has been in force for well over 40 years. The UPC Agreement indeed doesn’t completely repair the EPC deficit, but it does provide an independent supranational court that can revoke European patents, even after the EPO boards of appeal have decided. It cannot overturn EPO decisions not to grant such a patent, but this should not be a reason not to ratify the UPC Agreement; that agreement should be judged on its own merits.

    Rejecting the EPC for constitutional reasons would be a denial of over 40 years of reality and a very grave infringement on both Article 1 of the 1st Protocol to the European Convention on Human Rights and article 17 of the Charter of Fundamental Rights of the European Union, since it would interfere with granted European patents and pending applications. Let’s hope that no court will take Germany down that disastrous road.

    Of course, anyone can raise issues from a purely theoretic perspective, but a science that doesn’t take society into account is a phenomenon of the past which we have hopefully left behind. Anyway, even if science would not be required to function within society, courts certainly are.

    Wouter Pors
    Bird & Bird, The Hague

  2. I would say that the difficulties in disentangling the relations between the UK and the EU in IP matters other than patents should call to be rather cautious when it comes to the UPC.

    Ratification at any cost before the Brexit will not simplify matters as one thing is clear: the UP and the UPC are only for member states of the EU. Once Brexit comes, the UK is out, in spite of what various people have said.

    Is it then really so wise to push for the ratification?

    One wonders who has been pushing Eurochambres to write such a letter. The information I have from SMEs is that they are anything but happy about the UPC.

    When even the EU commission is thinking of a litigation insurance for SME, one really starts wondering if the SMEs are really so enthusiastic about the UPC as is claimed in this letter.

    This comment is not to be used by Techrights or Mr Schestowitz in any form whatsoever.

  3. There is no surprise in the position of Mr Pors. I still maintain that UK cannot stay in the UPC after Brexit.

    It is not just a matter for the Administrative Committee of the UPC to amend it. It is not the role of the Administrative Committee to circumvent the necessity for members states of the UPC to be at the same time members states of the EU.

    Art 87(1) states inter alia that “the Administrative Committee may decide to revise this Agreement with a view to improving the functioning of the Court”. Keeping a non EU member state in the UPC is not improving the functioning of the Court. One has just to think about enforcement in UK of decisions taken by the UPC once UK is not any longer member state of the EU.

    Art 87(2)UPCA states: The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law. Accepting UK as non EU member is certainly not bringing the agreement in line with Union Law.

    When in the same breath, Mr Pors thinks that it is just necessary to add “an additional protocol under article 142 EPC to allow the UK to keep participating in the Unitary Patent”, he seems to have overlooked the footnote at Art 142EPC which clearly refers to “The group of EU member states participating in enhanced cooperation” and quotes Regulation (EU) No. 1257/2012 of the European Parliament and Council Regulation No. 1260/2012. How can EU regulations simply apply to non EU member states?

    It is amazing how some people think that by repeating fallacious arguments they might become true. Wishful thinking should come to an end.

    It would also have been wiser for Mr Pors to have made his comments about the position of Prof. Broß in the right blog and not here.

    This comment is not to be used by Techrights or Mr Schestowitz in any form whatsoever.

  4. It is tiring reading this same stuff from the universe of wishful thinking, spread by the very same group of people, over and over again. Independent commentators have repeatedly insisted that the resolution of the issues is not as easy as Mr Pors and his ilk of business-minded UPC proponents would like to make us believe. But maybe their task task in all this is simply repeating the same unfounded assertions again and again, hoping that at some point the public will simply stop resisting swallowing them.

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