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Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) in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.