Dr. Markus Herzog

UK withdraws ratification of the UPCA

23.07.2020

Germany takes delicate course in ratifying the UPCA

On 20 July 2020, the British government officially withdrew its ratification of the UPC Agreement[1]. Following the Brexit and the UK's unofficial announcement that it no longer wished to participate in the UPC system[2], speculations as to whether the UK could remain a member of the UPCA no longer had any basis.

The two points still outstanding are thus on the one hand the question of the locations of the divisions of the central chamber of the UPC (London question), and on the other hand, against the background of the negative ruling of the Federal Constitutional Court on the first German ratification law, the question of the timetable for the renewed vote of the German Bundestag on the ratification law.

While I had expected in my guest article of 28 March 2020 in the Börsen-Zeitung[3] that the German government would wait until the London question had been clarified before putting the ratification law to the vote again, the Federal Ministry of Justice seems to have different ideas about this[4]:

As the Federal Constitutional Court in its ruling had merely criticized the circumstances of the vote on the ratification law, the Ministry of Justice obviously plans to bring the law back into the Bundestag very quickly, with only a slightly amended explanatory memorandum, but otherwise in unchanged form, and this despite the fact that the overall situation of the UPCA had changed fundamentally as a result of the Brexit. In particular, the London question seems to be put on hold. It is true that the German government is of the opinion that London can no longer be given a division of the central chamber of the UPC after the Brexit. However, according to the Ministry’s position, it is allegedly clear from the UPCA, by way of interpretation, that if the London division ceased to exist, the divisions in Paris and Munich would have to take over its tasks.

I have serious doubts as to whether this interpretation would stand up to judicial review. I am convinced that the fact is overlooked that Article 7 Paragraph 2 Sentence 1 of the UPCA designates London as the seat of a division of the central chamber, irrespective of whether the UK is a member of the UPCA or not, and that the Article 7 Paragraph 2 Sentence 2 of the UPCA designates Annex II to the UPCA as an integral part of the UPCA and thus also assigns it the status of a law. It is to be emphasized that Annex II of the UPCA contains a basic distribution of responsibilities between the divisions, which assigns procedures of IPC Sections A and C to the London division. At least the question which of the London procedures are to be taken over by the Paris division and which by the Munich division cannot be answered simply by interpreting the UPCA. It is not possible to simply pass this by. According to the principle of separation of powers, the UPC, like any other court, has the task of applying laws according to their wording as prescribed by the legislator, and not of amending them at will, and this particularly not by amending a schedule of distribution of responsibilities, i.e. by a purely administrative measure.

Since the ratification of the UPCA by Germany is the final condition for the UPCA to enter into force, the UPCA could well become a reality sooner than expected if the Federal Government were in fact to stick to its current line. In this case, however, I expect for proceedings before the central chamber in IPC sections A and C, that the losing parties in these proceedings could challenge the UPC's rulings before the ECJ on the grounds that there was a serious procedural defect, in particular on the grounds that the hearing did not take place in London, as required by Article 7 and Annex II of the UPCA, and thus did not meet the legal requirements of the UPCA. I would certainly give such attacks a chance of success.

Against this background, I believe that clarifying the London issue before the German Bundestag votes again on the law ratifying the UPCA remains of central importance and is by far the preferable, if not the only possible solution.

 

[1]      cf. Unified Patent Court “UK Withdrawal from the UPCA”
https://www.unified-patent-court.org/news/uk-withdrawal-upca

 

[2]      cf. Newsletter “Brexit and UPC Agreement” vom 2 März 2020
https://www.weickmann.de/en/news/news-detail/article/brexit-and-upc-agreement/

 

[3]      Weickmann & Weickmann in the press
https://www.weickmann.de/en/news/news-detail/article/weickmann-weickmann-in-der-presse-2/

 

[4]      Frankfurter Allgemeine Zeitung “Nächster Anlauf für EU-Patente”
https://zeitung.faz.net/faz/wirtschaft/2020-06-16/naechster-anlauf-fuer-eu-patente/471321.html

 

Contact:
Dr. Markus Herzog
, Dipl. -Phys., Dr. rer. nat., Patent Attorney, Partner
Weickmann & Weickmann, Patent- und Rechtsanwälte PartmbB, Munich
Tel.: +49 (89) 455630 | E-Mail: mherzog@weickmann.de

 

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