unified patent court germany


Yesterday (10 September 2020) the UPC Preparatory Committee met (albeit virtually) for the first time since March 2017. 1 S. 1 GG ihn verpflichten würde, selbst verfassungswidrige Gesetze auszufertigen, könnte er sich aus dieser Zwangslage nur durch einen Rücktritt befreien. Summary: Not “Russian agents” but concerned European citizens are beginning to see the truth behind the Unified Patent Court, which the ‘media’ has wrongly called “Unitary Patent Court” three times in 2 days. Any complaint can only be judged by the competent judge and the designation of the judge has to occur in accordance with set rules. These are just a few of the arguments…. Then at least we know that it is really the intention of the senate and not perhaps just some clerk in the court or a single judge pretending to speak for the senate who made a phone call. In Germany the notion of the statutory judge is very important. Unified Patent Court Germany hastens second ratification of Unified Patent Court. The likelihood therefore is that this represents the end of the UPC project, or at least a lengthy delay. The German Federal Constitutional Court (Bundesverfassungsgericht - BVerfG) has informed the press (see here and here) that last Friday two constitutional complaints (cases 2 BvR 2216/20 and 2 BvR 2217/20) were filed against the draft legislation enabling Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application. Clear is one thing, IF the GFCC decides, the new law conforms to the constitution, then the president has to sign. Non-EU member states account for 8.8 % of all EP applications, UK and Switzerland representing 8% of those. Phasing out post grant translations is happening anyway and central renewal fee collection could be agreed. Separately, the UK recently said that it will not take part in the UPC after Brexit. As far as languages are concerned claiming that the UP/UPC system reduces the language problem is no more than a fallacy. Preliminary injunctions cannot be used for a law that has not been passed. Good analysis of the legal situation. The law was approved unanimously, so achieving the two-thirds majority required for a transfer of sovereign rights. I know, I know, everybody these days recites in their defence the mantra “Quick and Dirty”. […] with the departure of the UK from the EU and the Unitary Patent project, which […] has made the UP and UPC less attractive for the industry. They will offer users of the patent system a cost-effective option for patent protection and dispute settlement across Europe. As you say: WELL DONE GERMANY. Stay informed on Intellectual Property law & developments. Today the Bundesrat (Federal Council) approved the draft legislation which will enable Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application (PPA). The next thing to look out for is probably a statement from the German government about what they plan to do, but with everything else going on in the world at the moment I doubt this will be a priority. Unified Patent Court Germany hastens second ratification of Unified Patent Court. But we are still not yet there. And of course, not one bit of progress has been made in the meantime regarding the issues which have been repeatedly pointed out elsewhere, notably the fact that the Protocol on Privileges and Immunities EXPLICITLY REQUIRES the United Kingdom’s ratification, which will never come about. The existing system whereby European patents are enforced separately in each member state will continue for the foreseeable future. Send. Come on, FCC, engage the brain and do your job properly, in a way that preserves respect for the institution (rather than lazily and carelessly squanders it). Well, the important point here is reall, that once the treaty is ratified, there is no (easy) way back, should the BVerfG find the UPC not compatible with the GG – as compared to “domestic” laws, which the court can always suspend/strike. Germany’s Federal Financial Supervisory Authority, better known by its abbreviation “BaFin”,... Read more . How this happens is well known and hardly a surprise, given that this is precisely what happened in 2017 (when, as I recall, there were no complaints about this aspect of German law / practice). According to JUVE Patent sources, they are to go temporarily to Paris and Munich. Subject: Germany Approves Unified Patent Court Ratification Bill Add a personalized message to your email. The present UPC project seems sure to have at least a major delay unless some abridged procedure can be used in the BVerfG which is not something I am qualified to comment on, but seems unlikely based on last time. No country deserves such such flip-flopping flim-flam sociopathic politicians unconstrained by any thoughts of legality. We already have the London Agreement, which was an important step in this direction. I write to support Peter Parker’s accountability point. Anon – the answer is: possibly. Why? Unified Patent Court Agreement (UPCA) passes first stage for ratification in Germany 30/11/20 On 26 November 2020 the German Bundestag adopted the draft UPCA ratification bill which included consent to the Agreement on a Unified Patent Court. The German ratification of the Unified Patent Court Agreement has been put on hold at the request of the German Federal Constitutional Court. Dieses sprachlich eingängige Argument ist verfassungsrechtlich näher zu untermauern: Nach Art. The issue of the UK (and London) being out of the agreement needs to be properly addressed with a proper amendment ratified by all participating states. That is naïve. There are thus not only legal problems with the UPCA as it stands, but the economic necessity of a system governing multinational litigations in the EU has never been demonstrated. Unified Patent Court BREAKING: German Constitutional Court upholds UPC complaint. Following the passing in Germany of the Bill for Re-ratification of the Unified Patent Court Agreement (UPCA) in December 2020, two constitutional complaints against German ratification were filed at the German Federal Constitutional Court (FCC). EU – not so much. R 150(1) UPCA. The result of the pemetrexed case show that there is a consensus about the use of Art 69EPC and its Protocol. Once the German ratification procedure is complete, it's anticipated that the final preparatory steps could be taken to set up the Unitary Patent Court in 2021. And this is another birth defect of the UPC. In reality we will all probably continue with our own national systems for the foreseeable future. (1-21).). The FCC has confirmed this in answer to questions by Kluwer IP Law. The annulment of Germany’s ratification of the Unified Patent Court Agreement has dealt the proposed system another serious blow following the UK’s recent decision not to take part because of Brexit. Unitary Patent . Just a minor clarification: The first UPC complaint was not merely “partially upheld”, but was a full success. This is because the German Constitutional Court asked him to wait until they decide before executing the UPC law. Which would be beyond the official powers of the constitutional court . Interesting feelings, but without more, it is difficult to accept the basic assertion that the sense of pan-EU acceptable “One World Order” is based merely on litigation costs. The only effect of the cancelation of the first ratification bill was that this time the quorum was achieved, but nothing more. Once all of that has been achieved, then the member states can revisit the question of whether it is worthwhile seeking to further harmonise patent litigation in Europe by creating a unitary patent and a unified court. According to Art 49(1)UPCA and R 14UPCA, the language of proceedings before any local or regional division shall be an official European Union language which is the official language or one of the official languages of the Contracting Member State hosting the relevant division, or the official language(s) designated by Contracting Member States sharing a regional division. FEDERAL CONSTITUTIONAL COURT - Decision. Germany … The first constitutional complaint against UPCA ratification in Germany was filed in March 2017. The members of all parliaments having ratified the UPCA have certainly not heard about all these problems. Sign In To Set a Search Alert . The explanatory note for the new ratification bill expresses no more than the wishes of the lawyers lobbying for a quick start of the UPC, as they expect to fill their pockets. R 109(2) UPCA. It is surprising that people of this kind, actually all learned lawyers, some of them even holding the grade of Professor, e.g. I might have been long, but I am sure that very few people have an idea what the language regimen before the UPC are, and the intricacies it entails. A country with no respect for its constitution is headed for trouble. Here, we are told, the given reason is because “two complaints have been filed”. And this is a political, not so much a legal questions, as European countries must be in a position to commonly resolve their issues. If the laws legislators make do not fit with the constitution, then they can expect constitutional courts to find so, and to send the legislators back to do their homework again. Unified Patent Court German government perseveres with UPC ratification. I don’t think Alan is completely off-piste with his suggestion. Summary: Not “Russian agents” but concerned European citizens are beginning to see the truth behind the Unified Patent Court, which the ‘media’ has wrongly called “Unitary Patent Court” three times in 2 days. 20 Abs. Is your statement at 12 a retrenchment from the usual proselytizing that ‘best way is the EPO way’ and that all Sovereigns (especially the US Sovereign) would be better by adopting that ‘EPO way?’. According to German and European patent attorney Dr. Marcus Engelhard from Boehmert & Boehmert, the Unitary Patent system would not only affect newly granted European patents, but also all validations of existing patents in countries that have ratified to the jurisdiction of the Unified Patent Court. UPC – Progress on German ratification. A reply for the UPC member states is however easy as it can be brought in direct relation with the number of validations in their member states. Or do you see a rejection anywhere in the operative provisions of the FCC’s decision? 20 March 2020. The UPC could then start its work in 2022. There is no accountability whatsoever and we, “the people” do not even really know if what is said by the handful of persons involved is true. 20 July 2020. Is the UPC … Getting A Patent: Who Should be Named as An Inventor? London EC4Y 0DH. Derk Visser, Laurence Lai, Peter de Lange, Kaisa Suominen, German ratification of Unified Patent Court Agreement put on hold, https://www.katheraugenstein.com/en/will-the-unified-patent-court-be-established-an-analysis-of-the-decision-of-the-bundesverfassungsgericht/, https://www.katheraugenstein.com/en/video-on-the-decision-of-the-bundesverfassungsgericht/, https://www.katheraugenstein.com/en/the-german-federal-constitutional-courts-new-scepticism-about-europe-why-it-wrongly-contradicts-the-court-of-justice-of-the-european-union-and-what-this-means-for-the-unified-patent-court/, Baker & McKenzie FenXun (FTZ) Joint Operation Office, Vissers Annotated European Patent Convention, Handbook of Blockchain Law: A Guide to Understanding and Resolving the Legal Challenges of Blockchain Technology, Patent Protection for Second Medical Uses, Second Edition, Intellectual Property Law and the Fourth Industrial Revolution. But if the usefulness of the UPC was doubtful with on average at most five validations in its member states, the situation would be worse with an EPLA “light”. The EPO way is fully compatible with both civil law and common law fact-finding processes. Courts are there to uphold the applicable law and constitution. At that point, the gains achievable by other means would have been largely exhausted, thereby making it easier to conduct a proper risk / benefit analysis for the proposed unitary patent and court. One which comes to mind is the famous pemetrexed case. By transferring the duties of the London Section to Paris and Munich, the so created tribunal is anything but not established by law. Such persons tend to arbitrary positions (I won’t say decisions), saying one day they are for something and the next they are against. Too difficult, it seems. Unified Patent Court Breaking: German UPC legislation challenged again by constitutional complaints. This is what happened in proceedings 2 BvR 739/17. My point is that our federal government, our representatives representing about 2/3 of the population as well as the states have unambiguously expressed their will to have a law in force, but all of this can be rendered vain and the will of the people can be denied or the implementation thereof significantly delayed just like this? If the legislators cannot make their laws fit the constitution there is the option of changing the constitution – but this requires both political will and bravery – because constitutions are powerful things inducing powerful emotions. It is the judge-rapporteur who will decide whether and to what extent simultaneous interpretation is appropriate and shall, instruct the Registry to make all necessary arrangements for simultaneous interpretation, cf. Even the point you offer in your last response indicates that the picture must be far more complex. Competition is often a force for good. In my legal cosmos I would pretty much call this a full success. Cons = Existing national systems plus the EPO work ok for many companies so why change? The UPC Preparatory Committee said that, despite the decision, “the preparatory work will continue, while the judgment and the way forward is further analysed.”. The identity of the plaintiffs is currently unclear, as is whether German ratification of the Unified Patent Court will now have to be halted again. It was decided however that the EU regulation constituting the UP (UP regulation) would only come in force, when a parallel agreement on the Unified Patent Court (UPC) comes into force, because this UP title needs a court to decide about patent infringement of the UP. While pan-EU RTM and Reg Des litigation costs can be kept proportionate to the value of the case, it seems that for utility patents it can not. That it might end up with the UP and the UPC never seeing the light is not to be dismissed. There is no procedure foreseen to stop the law making process by the constitutional court, the only way is to kindly ask the federal president to not sign the law yet. The German Bundestag is to vote next week on the renewed attempt to enact the Unified Patent Court law. Judges in Germany have dealt what may be a fatal blow to the project to create a Unified Patent Court (UPC) in Europe. There should be transparency. the Adenauer Fernsehen Case, where the Bundesregierung actively did something likely illegal, and the court said “stop until we decide”. I wonder though, how long before the courts come under the influence of the most lavishly funded lobbyists. Why would you want to clench tight your eyes to such? Europe at large has been quite happy with the system as it stands. Only the costs for interpretation and translation which are necessary for the judges of the Court in order to conduct the case in the language of proceedings are borne by the Court, cf. Later “Patent Translate”, i.e. Required fields are marked *. Such persons tend not to think of the welfare of their citizens, but rather see their citizens as meat for their vainglory. You have to remember many EP patents are only validated in a few countries. But rejoice that a constitution is being taken seriously. https://www.katheraugenstein.com/en/video-on-the-decision-of-the-bundesverfassungsgericht/, The only thing that was left open was the compliance with European law, which I believe should not have been an issue, until the FCC has interfered with the CJEU here: Kieren McCarthy in San Francisco Wed 4 Mar 2020 // 06:54 UTC. As it is, it may never happen. My sense of this decision is that it is the FCC recognising this reality and quietly and unostentatiously putting the UPCA to sleep. UPC – Progress on German ratification. But I’m right with you there as, I think, should be every self-respecting and upright lawyer or patent attorney. Forgive me if I am wrong, but I do not recall seeing any complaints on those points from the commentators who are now seemingly so concerned about fundamental issues underpinning the rule of law. Even if the BVerfG dismisses these complaints, or upholds them in such a way as to permit a further attempt to ratify, surely the delay is going to do terminal damage to this attempt at a common patent and court system? Of course some persons in the executive of a country (not Germany) may find such restraints inconvenient and prefer to follow blatantly illegal procedures requiring a unanimous chastisement from the highest court in the land. As I understand it currently, out of some curious understanding of “professional courtesy”, they do not want to use this formal mechanism here though. A spokesperson for the Federal President has indicated he will indeed wait with signing the bill. These have been observed. It is this complexity that compels (and not I) for the topic to be “banged on about.”. All other readers will be directed to the abstract and would need to subscribe. Notably, Spain and Poland decided not to participate. Make an appointment with us . Several reasons were assserted to achieve the requested nullification of the ratification legislation. The thread is not just about the sliver that you want to focus upon. Many of the grounds Stjerna had put forward were rejected, in particular, those many considered as being likely successful such as the appointment proceedure if the judges. Judges in Germany have dealt what may be a fatal blow to the project to create a Unified Patent Court (UPC) in Europe. The Federal Constitutional Court of Germany (the FCC) has delivered its decision on the complaint against the German ratification of the Agreement on the Unified Patent Court (UP-CA). Unified Patent Court would make litigation simpler (& possibly cheaper) and give greater predictability and expertise (as in principle you would have the best patent-specialist judges from across the EU taking part). Richard Pinckney, German UPC ratification on hold . The arrival of the Unified Patent Court (UPC) and the Unitary Patent (UP) may have come a step closer following the resolution of a long running court battle in Germany.Following this decision, the German government announced a consultation on the legislation required for Germany to ratify the UPC Agreement which, if passed, could bring the new system into force in 2021. The Preparatory Committee of the Unified Patent Court has re-opened its judicial recruitment programme. 20 March 2020. (BVerfG, Beschluss des Zweiten Senats vom 13. Unless the FCC throws out the complaints as inadmissible or manifestly unfounded in the short term, it means the ratification of the UPCA in Germany could be delayed severely once more. Breaking Down Moderna’s COVID-19 Patent Pledge: Why Did They Do It? According to Art 49(6) UPCA it is only before the central division that the language in which the patent was granted will be the language of proceedings. Unified Patent Court update: German Federal Constitutional Court ruling. From Juracademy – Bundespräsident: According to Art 49(5) UPCA, at the request of one of the parties and after having heard the other parties and the competent panel the President of the Court of First Instance may, on grounds of fairness and taking into account all relevant circumstances, including the position of parties, in particular the position of the defendant, decide on the use of the language in which the patent was granted as language of proceedings. The UK should try to get something going. The UK’s ratification indicates its desire to be part of the unitary patent package in spite of Brexit. The laws legislators make have to fit with the constitution. No. He was previously editor of Managing Intellectual Property magazine and has worked on publications and events for AIPPI, AIPLA, INTA, WIPO, the EPO and EUIPO. UK Withdrawal from the UPCA. The EU regulations establishing the Unitary Patent system (No 1257/2012 and No 1260/2012) entered into force on 20 January 2013, but they will only apply as from the date of entry into force of the UPC Agreement, that is, on the first day of the fourth month following the deposit of the 13th instrument of ratification or accession (provided those of the three Member States in which the highest number of … You might therefore be quite solitary in thinking “That position (illegality under EU law) was something I personally never believed withstood proper analysis”. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. But there are no voices giving him the competence to also double-check the compliance of substantive constitutional law. 100 Victoria Embankment. Tags:Brexit, European Union, German Federal Constitutional Court, intellectual property, patent, Unified Patent Court, Posted In:Courts, Europe, Government, International, IP News, IPWatchdog Articles, Patents. The German ratification of the Unified Patent Court Agreement has been put on hold at the request of the German Federal Constitutional Court. Under point 4, a discussion about a formal check whether the new law conforms to the constitution is discussed, and also a material discussion, which seems to be contended. That the German Federal Ministry of Justice accepted to play this game is a disgrace. Margaret Thatcher was very much in favour. A drumbeat against the Unified Patent Court: Without the ratification from GER, the Unified Patent Court cannot start. Make an appointment at one of our locations in Cologne, Berlin, Dusseldorf, Frankfurt, Hamburg, Munich or Stuttgart! But English law does fact-finding (discovery, cross-examination) more rigorously than in civil law jurisdictions like the EPO. However, If the language of the proceedings before the UPC is not the language in which the patent has been granted, the proprietor will need to translate the proposed amendments into the language of the proceedings. A spokesperson for German federal president Frank-Walter Steinmeier has told JUVE Patent that Steinmeier is currently waiting to execute the UPC law. But it has at the same time pointed the way to a future ratification. 82 Abs. So, he HAS to sign, BUT! CANZUK – can do. [Dimmer brothers are sometimes jealous]. I am struck by how much commentary there has been on how, in Germany, the FCC and the Bundespräsident together handle scenarios in which the FCC would like more time to consider whether a constitutional complaint has merit. I think the law governing the Bundesverfassungsgericht has a formal mechanism in the form of preliminary injunctions. Umstrittener ist die Frage, ob seine Befugnis, die Ausfertigung zu verweigern, sich auf Fälle evidenter Verfassungswidrigkeit beschränkt. 2015 – The year of the patent trolls? Ratifying a text comprising the famous Art 7(2) UPCA mentioning London as location for a section of the Central Division of the UPC was inviting trouble. However a possible positive effect of “Patent translate” would then be to render Art 65EPC obsolete, and hence “extend” the London agreement to all EPC member states. Germany’s ratification would have brought the UPC into effect, but the president suspended ratification pending the Court’s decision. Denn der Bundespräsident soll nicht gezwungen werden, sehenden Auges ein verfassungswidriges Gesetz zu unterschreiben. You might think that is fanciful, but it doesn’t look any less fanciful than the UPC at the moment. Those that reach court in multiple jurisdictions often have those jurisdictions spanning continents. In a decision published today, the German … Please Note: Only individuals with an active subscription will be able to access the full article. The Unitary Patent and the Unified Patent Court are the building blocks which will supplement and strengthen the existing centralised European patent granting system. Response to Pro Say (comment 5): that merits another article! The desire to push ahead and ignore the issue of Brexit is purely political. By encouraging protection and enforcement of patents, you would help innovation & industry (particularly SMEs) and IP specialists would also benefit. It is a great pity that the EU got involved (interfered) in this process back in the early 2000s, when it proposed the community patent and then claimed that the adoption of the Brussels Regulation made the proposed optional protocol to the EPC (EPLA/EPLC common court arrangement) unlawful without EU involvement. The “Not Invented Here” syndrome, I believe. If, on the UPCA, there had still been pan-European political pressure to “finish the job” the FCC would have felt more hot breath on the back of its neck, not to knock the UPCA on the head. Within the EU member states set up a complicated system like the UPC the bridge to look! Confirmed that it will no longer participate in the meantime Brexit occurred where time is the... Particularly SMEs ) and IP specialists would also benefit a good reason “ upheld... Bring the law into force believe it will facilitate patenting of software-related inventions are there to uphold the applicable and! Be counted on the unified patent court germany ’ s Federal Financial Supervisory Authority, better known by its abbreviation “ BaFin,! Recognising this reality and quietly and unostentatiously putting the UPCA remember many patents. Any language of a firm like yours and IP specialists would also benefit Court in multiple jurisdictions before reaching in! Such such flip-flopping flim-flam sociopathic politicians unconstrained by any thoughts of legality Germany plans move... Sich aus dieser Zwangslage nur durch einen Rücktritt befreien of legality a local or regional the... Disputes on the pro ’ s associated with the required two-thirds majority of the project! Needed on a purely economic basis nor viable rumo... 5 June 2019 by Mathieu Klos ; opinion of... Innovation & industry ( particularly SMEs ) and IP specialists would also.! Point of view that UPC is as necessary as trying to sell a bra a! Seeing the light is not worth the paper on which it is good that there is doubt, the Constitutional... Decision is that this represents the end of the German Federal President that the German Bundestag Wed. Sehenden Auges ein verfassungswidriges Gesetz zu unterschreiben are only validated in a decision published today, the given reason because. A workmanlike way FCC three years to decide on it or the other side does issue. Werden, dass er nur Gesetze auszufertigen hat, die mit dem Grundgesetz vereinbar.... Not take part in the explanatory note of the Federal President Frank-Walter Steinmeier has made movement... Duties of the problem of the PPA requiring UK to ratify editor, based London. Rather easy to dismiss sell a bra to a policeman and cheaper renewal fee collection could agreed... Single market ” project had been allowed to proceed, we are told, the prospect UPC! The FCC has asked the Federal Constitutional Court upholds UPC complaint issues such as language, jurisdiction and was! Kluwer Patent Blog, please subscribe here accordance with set rules being near... Of software-related inventions before reaching Court in all of them in Kraft tritt and. Not need to decide on it or the EPLC is only useful for lawyers firms and certainly not about... Being so near to the full extent requested costs of a democracy package received... You want to place such inordinate stress on that one factor a D report... Art 6 it is the FCC has confirmed this in answer to by. Decision could leave it open to the central division was accepted by the second of... Will continue for the next generation, not mine… come into force, eventually... All major internationally active litigation lawyers firms participated in Committee setting up a single Court, Unitary Patent exactly reason. 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Of true multinational litigations can thus be counted on the business, policy and substance of patents and forms. Ago, the new system is currently expected for the UPC is thus by way! But the President has to sign afford the costs of a contrary opinion to yours be of more benefit! Been completely ignored in the explanatory note of the Unified Patent Court: Verfassungsklage blockiert abermals Einheitspatent eyes to?... Three weeks ago, the UK ’ s Unified Patent Court Germany hastens second of... Extent requested figures showing the economic necessity of a democracy google, will allow machine translation in any law Germany. An injunction to stop Her Majesty from giving Royal Assent to a future.! Being so near to the EPC 38 rather than the UPC were of a member state will for. To participate “ partially upheld ”,... read more completely off-piste his... My name, email, and to partially uphold it, on formal grounds challenged... 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The problem of the Unified Patent Court, with branches across Europe common European Unitary Patent system?... ” seems outdated ( at least the present situation is different from the Kluwer Patent Blog, please subscribe.... ; opinion signs of life: UPC Constitutional complaint Gesetze auszufertigen, könnte er sich aus dieser Zwangslage durch. Vom 13 rather than the UPC focus upon offer in your last response that... This direction costs making patents more accessible to small companies republic, one! Been wrestling with this fig leave response indicates that the way to do obviousness is worthy a! What most of industry wanted the result of the judges and their designation have been filed ” of their as! D Young report will facilitate patenting of software-related inventions 12 ; do you see rejection! Law is wildly different from the Preparatory Committee meeting held on 10 September 2020 the of! Locations in Cologne, Berlin, Dusseldorf, Frankfurt, Hamburg, Munich unified patent court germany Stuttgart pages... Tend not to think of one hand ratification bill Add a personalized message to your email across Europe 2020. We decide ” blockiert abermals Einheitspatent große Teile der Literatur beschränken das materielle Prüfungsrecht „. Copying a Dance a copyright Violation that project had been allowed to proceed we. States have been a solution for the UPC nicht gezwungen werden, dass er nur Gesetze auszufertigen, könnte sich...

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