Has the Volte-Face on the Unified Patent Court Agreement been worth it?

Author Cédric Pusney Licence CC BY 2.0 Source Wikimedia Commons

 

Jane Lambert

Tomorrow is World Intellectual Property Day,  It is an international festival of creativity and innovation to celebrate the anniversary of the coming into force of the Convention Establishing the World Intellectual Property Organization on 26 April 1970,  Because it is a very significant anniversary, governments like to make momentous announcements about intellectual property on that day

One such announcement on World Intellectual Property Day was British ratification of the Unified Patent Court Agreement ("UPCA") made exactly 3 years ago by the then Foreign Secretary the Rt Hon Boris Johnson MP.   As British ratification was as welcome as it had been unexpected, I hailed it t as "Possibly the best thing to happen on World Intellectual Property Day", Any euphoria occasioned by that news was very short-lived.   A volte-face came less than 2 years later.  Part of the reason for that reversal. according to a parliamentary written statement by Amanda Solway MP, Parliamentary Under-Secretary of State, Minister for Science, Research and Innovation, was:

"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." (see UK Withdrawal from the UPCA 20 July 2020 Unified Patent Court website).

In other words, the UPCA was thought to be incompatible with "taking back control" and the notion of sovereignty. 

Any intervention by the CJEU would have been minimal compared to matters in which Her Majesty's government has agreed to the continued involvement of that Court. First, the agreement by which the UK withdrew from the EU and Euratom provides for disputes over the Northern Ireland Protocol to be resolved by the CJEU as the House of Lords noted in paras 256 to 258 of their  Report on the Protocol.  

Secondly, s.6 (2) of the European Union (Withdrawal) Act 2018 permits courts and tribunals in the UK to have regard to judgments of the CJEU delivered after 23:00 on 31 Dec 2020 in so far as they may be relevant to any matter before them.  In Warner Music UK Ltd and another v TuneIn Inc. [2021] EWCA Civ 441 (26 March 2021) the Court of Appeal decided to follow the CJEU's judgment in  C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz  [2021] EUECJ C-392/19, [2021] WLR(D) 157, EU:C:2021:181, ECLI:EU:C:2021:181 which was delivered months after the expiry of the implementation period provided by art 126 of the withdrawal agreement. 

Thirdly, although the case law of the CJEU delivered before 31 Dec 2020 continues to bind British courts and tribunals, the Court of Appeal does have power to depart from that case law on the same basis that the Supreme Court has power to depart from one of its own precedents or of one of the House of Lords in accordance with the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234: In TuneIn, the appellant's primary contention was that the Court of Appeal should depart from the entire body of case law of the CJEU on communication to the public, or alternatively, that the Court should depart from Case C-160/15 GS Media BV v Sanoma Media Netherlands BV [2016] WLR(D) 477, [2016] EUECJ C-160/15, [2016] Bus LR 1231, ECLI:EU:C:2016:644, EU:C:2016:644.

The Court of Appeal struck down that argument like a whack-a-mole. Lord Justice Arnold gave no less than 8 reasons why departing from the CJEU's case law would be a bad idea between paras [77[ to [88] of his judgment.  The Master of the Rolls offered two, namely that the CJEU's case law was based on international agreements and there was no immediate .need to change anything.  Lady Justice Rose agreed that this was absolutely not a case in which this court should exercise its power to depart from the EU jurisprudence.  For those who are interested in the TuneIn appeal, I wrote a case note on the Court of Appeal's judgment in The Appeal: Warner Music UK Ltd and others v Tuneii Inc in NIPC Law on 24 April 2021.  

The UPC and the unitary patent would have benefited British industry great which is why they were recommended by both Gowers and Hargreaves.  Because of the adversarial system of civil litigation and the rule that costs of litigation are paid by the losing party the United Kingdom (and in particular) England is the most expensive and riskiest jurisdiction in the world in which to enforce an intellectual property right.  It is no coincidence that the country of Newton and Berners-Lee which initiated the industrial revolution and which still has some of the strongest research universities in the world trails consistently not just Germany and France in the number of European patent applications but also the Netherlands with a third of its population and Switzerland with one eighth.   A heavy price indeed for the chimaera of sovereignty.

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

English Speaking Commercial Courts in France, Germany and the Netherlands bid for London's Work

Author Raimond Spekking Licence CC BY-SA 4.0 Source Wikimedia

 

Jane Lambert

At 23:00 on 31 Dec 2020, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ceased to apply to the United Kingdom.  One of the likely consequences that Judge Marieke Witkamp noted in her article Internationalizing Domestic Courts in Europe: A Comparative Analysis on Procedure, Function, Organization is that judgments of the English courts will be more difficult to enforce in the EU a well as the means of obtaining evidence and serving process.

That has presented an opportunity for lawyers and the judicial authorities in Germany, France and the Netherlands to grab some of the international commercial litigation work (estimated at €16 billion by Orchard Reports in UK Legal Services Market Trends Report 2019 (Feb 2019))  that has been coming to the Business and Property Courts in London.  All of those countries have opened special commercial courts in which evidence may be admitted and at least some of the proceedings may be conducted in English.  In Part 4 of her article, which is a preprint of the article that is submitted to Cambridge University Press to become part of the book International Commercial Courts: The Future of Transnational Adjudication Judge Witkamp compares the French, German and Dutch courts with the Abu Dhabi Global Market, Dubai International Financial Centre and Qatar Financial Centre Courts in the Gulf. the Astana Financial Centre Court in Kazakhstan and the Singapore International Commercial Court.

The courts in France, Germany and the Netherlands differ from the courts in Asia in several respects but perhaps the most striking is that they apply their own substantive and procedural law whereas the courts in the Gulf, Singapore and Kazakhstan apply the common law and procedures based on the Civil Procedure Rules or, in the case of Singapore, Rules of the Supreme Court.  Whereas many of the judges of the Asian courts come from the leading common law jurisdictions (including Ebgabd and Wales), the judges of the French, German and Dutch courts are local judges who have a good command of English. Similarly, litigators and advocates from overseas can appear before the Asian courts but only locally qualified practitioners can appear in the French, German and Dutch courts.  In the case of the French and Grman courts that is probably because part of the written procedure and the judgment in those courts must be in French or German as the case may be.  In Part 5, the judge compares various features of the European courts and it has to be said that the Dutch court appears to be far more users friendly than its rivals. Although the judge argues that the civil law system of litigation offers advantages over the common law system it does not yet appeal to most international businesses litigators.  

There is one international commercial court that is in the EU that applies the common law and has seen an influx of lawyers from the UK and that is the Commercial Court in Ireland. This has more in common with the Singapore International Commercial Court than it does with the English speaking courts on the Continent but the author does not mention that tribunal.  That is surprising as it must be a serious contender for any European work that London loses. Later in the year, James Bridgeman SC who is a door tenant of our chambers and our French and Italian colleagues, Natasha Peter and Guido Carducci will give a webinar on enforcement of EU trade marks, Community designs and plant varieties in their respective jurisdictions. It is not clear whether the French, German and Dutch courts would have jurisdiction in those cases but the Dublin Commercial Court certainly does.

Anyone wishing to discuss this article or any topic mentioned in it can call me on +44 (0)20 7404 5252 or send me a message through my contact form.  I wish all my readers a very happy Easter.

Brexit Briefing March 2021

James Gilray The Plumb-pudding in danger; - or - State Epicures taking un Petit Souper

 

Jane Lambert

The rational argument over Brexit is summarized in this Gilray cartoon from 2 centuries ago. Is it better to be part of a large bloc with enormous bargaining power that has to take account of the interests of all its members some of which are irreconcilable or a medium-size entity with much less bargaining power but more agile in that it has only to take care of its own interests?

Up to now the disadvantages of leaving the EU have been more apparent than the advantages.  Inshore fishermen from certain waters have been unable to export their catch. Exporters of processed foods have been required to pay for health checks even on small consignments.  Hauliers from Ireland have found it more convenient to take a long sea crossing to the Continent than drive overland from Hollyhead to Dover.  British exports to the EU are said to have tailed off dramatically.  That is because The Trade and Cooperation Agreement has prevented tariffs but not non-tariff barriers that apply to all non-member states.

Now that might be a cost worth paying if the United Kingdom were to make up for more than it has lost in the fast-growing, emerging markets of Asia, Latin America and Africa.  That is, after all, the reason for the UK's application to join the Comprehensive and Progressive Trans-Pacific Partnership (see Brexit Briefing for January 2021 6 Feb 2021).  Now it has to be remembered that not all countries in the CPTPP are tiger economies.  Australia, Japan and New Zealand, for example. are mature services based economies not all that different from the member states of the European Union except in so far as they are much further away.

Far from negotiating a bilateral trade agreement with the UK in which former president Donald Trump expressed an interest, the government of the world's largest economy is contemplating the imposition of tariffs on a range of British experts unless the UK resolves its differences with the USA over digital services taxation.  Relations with the world's second-largest economy could hardly be frostier as a result of Brtish representations over the treatment of Uighurs in  Xinjiang and opposition activists in Hong Kong.

There has been one success that suggests that an agile national government can achieve more than a supranational bloc. That has been the procurement and deployment of COVID 19 vaccines.  The speed and efficiency with which the UK has vaccinated over 50% of its population with a first dose and a very large number with a second despite has made the Commission and EU member states appear flat-footed.  The government's performance has been trumpeted as a success of Brexit especially as some controls in the UK are easing just as many continental countries are re-entering lockdown.

Of course, procurement of supplies of vaccine over a very short period is not the same as negotiating trade agreements that are expected to stay in place for decades but it is an example of how agility and good organization can sometimes achieve better results than massive bargaining power.

Anyone wishing to discuss this article or any matter arising from it may call me on +44 (0)20 7404 5252 or send me a message through my contact page.