Monday 30 November 2020

Unified Patent Court Ratification Bill clears Lower House of the German Federal Parliament

Author Cezary p  Licence CC BY-SA 2/5  Source Wikipedia Bundestag

 










Jane Lambert

In German Constitutional Court's Decision in Re Unified Patent Court Agreement  22 March 2020 NIPC Law, I commented on the Constitutional Court's decision in  Re Unified Patent Court Agreement 2 BvR 739/17 Order of 13 Feb 2020 (20 March 2020) that the bill to ratify German accession to ratify the Unified Patent Court Agreement was unconstitutional.  I wrote:

"If the problem was the lack of a two-thirds majority there is nothing to prevent the German Government from introducing another ratification bill and making sure that there are enough parliamentarians in each of the houses of Parliament to vote the measure through."

That is what appears to have happened.  A new ratification bill was passed by a quorate lower house with the necessary two-thirds majority (see UPC – Progress on German ratification 26 Nov 2020 UPC website). The bill now proceeds to the Upper House which will vote on the proposed legislation on 18 Dec 2020.

As Mr Boris Johnson MP in his capacity as Foreign Secretary had deposited the instrument of ratification on World Intellectual Property Day 2018 (see British Ratification of the UPC Agreement - Possibly the best thing to happen on World Intellectual Property Day 26 April 2018 NIPC News) we might have expected the Unified Patent Court to open for business in 2021,  Unfortunately, there are likely to be further delays as a result of the UK government's volte-face under Mr Johnson's premiership (see Volte-Face on the Unified Patent Court Agreement  29 Feb 2020 NIPC News).   A withdrawal notification of ratification was deposited with the Council Secretariat on 20 July 2020.  On the same day the Minister for Science, Research and Innovation:

"UNIFIED PATENT COURT

I am tabling this statement for the benefit of Honourable and Right Honourable Members to bring to their attention the UK’s withdrawal from the Unified Patent Court system.

Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) in respect of the United Kingdom of Great Britain and Northern Ireland and the Isle of Man, and its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application (dated on 6 July 2017) (collectively “the Agreements”).

In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation.

The Agreements have not yet entered into force. However, in order to ensure clarity regarding the United Kingdom’s status in respect of the Agreements and to facilitate their orderly entry into force for other States without the participation of the United Kingdom, the United Kingdom has chosen to withdraw its ratification of the Agreements at this time. The United Kingdom considers that its withdrawals shall take effect immediately and that it will be for the remaining participating states to decide the future of the Unified Patent Court system".
Although this is the end of the road for British participation in the project unless and until the United Kingdom (or successor states of the UK) rejoin the European Union it need not be the end of the project.  

The UPC's Preparatory Committee meeting held on 10 Sep 2020 reported calls from European industry for the speedy implementation of the Agreement.  That includes British businesses that intend to continue to trade in the EU after the end of the transition period whether through subsidiaries, joint ventures or otherwise.  Until this year, British governments have always believed the establishment of an EEC, EU or unified patent to be in our national interests and much of British industry still does.  It is, therefore, gratifying to note that "good progress was made and the Committee is confident that pragmatic and legally sound solutions will be found that will enable the unitary patent system to be functional in a near future" (see Report of the Preparatory Committee meeting held on 10 September 2020 UPC website).

For that reason, I shall continue to monitor progress on the UPC even after the end of the transition period.   I shall also be glad to advise on points of law relating to European patents or the Unified Patent Agreement. As our chambers already have an Irish silk whose practice includes IP and technology law we can already provide representation in the UPC whenever it comes into being.   As soon as the UPC announces opens its doors, I shall also seek call to the Irish bar.   Anyone wishing to discuss this article or the UPC and unitary patent generally may call me on +44 (0)2- 7404 5252 during office hours or send me a message through my contact form.

Tuesday 17 November 2020

The Reqional Comprehensive Economic Partnership Agreement

Author Tiger7253  Licence CC BY-SA 4.0 Source Wikipedia

 
























In the week in which Michel Barnier and David Frost have held final negotiations, the governments of Australia, Brunei Darussalam, Cambodia, China, Indonesia, Japan, Laos, Malaysia, Myanmar, New Zealand, the Philippines, Singapore, South Korea, Thailand and Vietnam signed an Agreement for a Regional Comprehensive Economic Partnership on the 15 Nov 2020. The combined population of the contracting parties is 2.3 billion and their combined GDP is US$26.3 trillion. Larger than the United States-Mexico-Canada, the European Union and Trans-Pacific Partnership. 

The instrument is massive consisting of a Preamble, 20 Chapters and over 18 Annexes. Annex I contains Schedules of  Tariff Commitments for each country, Annex II Schedules of Specific Commitments for Services, Annex III Schedules of Reservations and Non-Conforming Measures for Services and Investment and Annex IV Schedules of Specific Commitments on Temporary Movement of Natural Persons.

The Chapters cover the following:
I shall explore some of these chapters in future articles.  

Anyone wishing to discuss this article or the agreement is welcome to call me on +44 (0)20 7404 5252 during British office hours or send me a message through my contact page.

Saturday 7 November 2020

Brexit Briefing October 2020

 ElectoralCollege2020 with results.svg

Source Wikipedia

Jane Lambert

Significant deadlines have come and gone in October almost without being noticed.  One was 15 which was supposed to be the last opportunity for the text of a treaty on the new relationship with the EU to have been ratified by the Council and the European and British parliaments, The other was 31 when a reply to the letter of formal notice on the UK's alleged breach of the EU withdrawal agreement mentioned in the press release of 1 Oct 2020 should have been received.

The reason why those deadlines have been largely overlooked is that the election in the USA is more likely to affect the UK's relationship with the EU27 in the long term than anything that Monsieur Barnier or Lord Frost or even their political masters or mistresses are likely to say or do. That is because Mr Biden and Mr Trump have very different views of the world and, accordingly, of the US's relationship with the UK.

Mr Biden was the Vice-President of an administration that negotiated the Trans-Pacific Partnership which was signed on 4 Feb 2016.  Mr Trump withdrew from that accord very shortly after he became President of the USA.  Similatrly, Mr Biden was part of an administration that negotiated with the EU to establish a Transatlantic Trade and Investment Partnership. Though there had been objections to that agreement in several member states including the UK, it was the Trump administration that pulled out of those talks. Mr Trump has shown no time for trade blocs.  He prefers bilateral deals where the USA can more or less dictate terms because of its overwhelming bargaining power.

If, which now seems unlikely, Mr Trump has won the 2020 election the UK will probably get a bilateral trade deal with the USA.  That might not make much difference to the UK's economy but it may be perceived by some as strengthening the hand of the British negotiators in their dealings with the EU. If Mr Biden has won the UK may find itself at the back of the queue for a bilateral trade deal as President Obama warned in the brexit referendum campaign. That would not be because of any antipathy towards the UK but because it has a smaller market than the EU27, the TPP  or indeed China and Japan.   When the UK was a member state of the EU it was useful to a multilateralist administration because the UK exercised some leverage as one of the big three member states.  By leaving the EU it has abandoned that leverage and hence much of its usefulness to a Biden administration.  Should Biden reopen trade talks with the EU for a Transatlantic Trade and Investment Partnership mark 2, the only way the UK could access the US market on preferential terms would be by joining those negotiations which would be tantamount to rejoining the EU.

The only other noteworthy event in October was the signing in Tokyo of the Comprehensive Economic Partnership Agreement with Japan.  In An Introduction to and Overview of the Comprehensive Economic Partnership Agreement with Japan 28 Oct 2020 I compared its structure to the EU-Japan Economic Partnership Agreement and found very little difference.

Anyone wishing to discuss this article or any of the topics mentioned in it may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form. 

Milan steps into London's Shoes to host a Section of the Central Division of the UPC's Court of First Instance

Author Francesco Ungaro   Licence CCO 1.0 Deed   Source Wikimedia   Jane Lambert :  It is ironic that the government of one of the countries...