Saturday, 28 March 2020

Surprise (?): German government continues its support for the Unitary Patent system

The German government announced that it continues its support for the introduction of the Unitary Patent system in Europe.

On 26 March 202, the German Federal Minister of Justice and Consumer Protection issued the following statement (see here for original):

PRESSEMITTEILUNG | 26. MÄRZ 2020
Europäische Patentreform soll fortgesetzt werden

Das Bundesministerium der Justiz und für Verbraucherschutz hält auch nach der Entscheidung des Bundesverfassungsgerichts vom 20. März 2020 an der Europäischen Patentreform fest.
Mit dem Übereinkommen über ein Einheitliches Patentgericht (EPGÜ) soll ein für alle Vertragsstaaten zuständiges Einheitliches Patentgericht geschaffen werden, das für Rechtstreitigkeiten über europäische Patente nach dem Europäischen Patentübereinkommen sowie dem zukünftigen EU-Einheitspatent zuständig ist.
Die Bundesministerin der Justiz und für Verbraucherschutz Christine Lambrecht erklärte dazu:
„Ich werde mich auch weiterhin dafür einsetzen, dass wir der europäischen innovativen Industrie ein einheitliches europäisches Patent mit einem europäischen Patentgericht zur Verfügung stellen können. Die Bundesregierung wird die Entscheidung des Bundesverfassungsgerichts sorgfältig auswerten und Möglichkeiten prüfen, um den festgestellten Formmangel noch in dieser Legislaturperiode zu beheben.“
Das Bundesverfassungsgericht hat am 20. März 2020 entschieden, dass das Zustimmungsgesetz zum Übereinkommen über ein Einheitliches Patentgericht aus dem Jahr 2013 nicht verfassungsgemäß und daher nichtig ist (Entscheidung im Verfahren 2 BvR 739/17). Damit kann Deutschland das Übereinkommen derzeit nicht ratifizieren. Das Übereinkommen ist bislang von 16 Vertragsstaaten gebilligt worden.
Für das Zustimmungsgesetz wäre nach Auffassung des Bundesverfassungsgerichts eine verfassungsändernde Mehrheit erforderlich gewesen. Die vorgesehene Übertragung von Hoheitsrechten an eine internationale Einrichtung gehe über die vorhandenen Ermächtigungen hinaus. Die Übertragung würde daher ihrem Inhalt nach zu einer Änderung der Verfassung führen. Das angegriffene Zustimmungsgesetz war einstimmig im Bundestag von den in der Sitzung anwesenden Abgeordneten beschlossen worden, jedoch nicht mit der nach Auffassung des Bundesverfassungsgerichts für das Gesetz notwendigen Zweidrittelmehrheit aller Mitglieder des Bundestages.
Das Einheitliche Patentgericht soll künftig in einem einheitlichen Verfahren mit EU-weiter Wirkung über die Verletzung und Gültigkeit von Patenten nach dem Europäischen Patentübereinkommen sowie dem zukünftigen EU-Einheitspatent entscheiden. In Deutschland sollen an den Standorten Düsseldorf, Hamburg, Mannheim und München jeweils erstinstanzliche Kammern des Gerichts eingerichtet werden. Das Berufungsgericht soll seinen Sitz in Luxemburg haben.




The EPO President Campinos reacted to this statement with a news message on the EPO website “Now is the time to make the UPP a reality”, posted on 27 March 2020, reading:

EPO President Campinos: “Now is the time to make the UPP a reality”

27 March 2020
The European Patent Office (EPO) strongly welcomes the announcement of the German government to continue its support for the introduction of the Unitary Patent system in Europe.
In a statement made yesterday on the country's ratification of the Unified Patent Court (UPC) Agreement, German Minister of Justice and Consumer Protection Christine Lambrecht expressed her intention to "carefully evaluate the decision of the Federal Constitutional Court and examine possibilities to remedy the identified lack of form still in the current legislative period."
Commentating on the statement, EPO President António Campinos said, "IP-intensive industries contribute 45% of GDP in the EU annually and 39% of all jobs. But sadly, we know that employment and growth are predicted to suffer badly In the aftermath of the Coronavirus. So it's important that now, more than ever before, measures are taken to support our industries. And we know that the UP and UPC can indeed provide that support, with reduced costs, simplified administration and greater legal certainty.
He added "The statement by the German government makes it clear that approval of the UPC Agreement with the required parliamentary majority is still possible. So it is time to act. It is time to make the long-awaited UPP a reality, for the good of our innovation sector, for the good of our businesses and industries, and for the good of our economy."

Further information





Friday, 20 March 2020

Bundesverfassungsgericht: Act of Approval to the Agreement on a Unified Patent Court is void

The German Bundesverfassungsgericht ruled that the Act of Approval to the Agreement on a Unified Patent Court is void.

The press release can be found here, and is cited in full below with some emphasis added:


Act of Approval to the Agreement on a Unified Patent Court is void

Press Release No. 20/2020 of 20 March 2020
Order of 13 February 2020
2 BvR 739/17
The Act of Approval to the Agreement on a Unified Patent Court (“the Act of Approval”) to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority. This is what the Second Senate of the Federal Constitutional Court decided on a constitutional complaint in an order published today. In its reasoning, the Senate stated that, in order to safeguard their right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.
Facts of the case:
The purpose of the Act of Approval is to establish the preconditions for the ratification of the Agreement on a Unified Patent Court of 19 February 2013 (“the Agreement”). As an international treaty, the Agreement is part of a regulatory package on patents at the core of which lies the introduction of a European patent with unitary effect at EU level by way of enhanced cooperation. The “European patent with unitary effect” provides unitary protection in all participating Member States. The Agreement provides for the establishment of a Unified Patent Court as a court common to most Member States for disputes concerning European patents and European patents with unitary effect. In relation to European patents and European patents with unitary effect, exclusive competence for an extensive catalogue of disputes is to be conferred on the European Patent Court. This catalogue comprises primarily actions for patent infringements, disputes on the validity of patents and certain actions against decisions of the European Patent Office. The draft of the challenged Act of Approval was adopted unanimously by the Bundestag in the third reading but only by about 35 members of the Bundestag present. Neither was the presence of the required quorum determined, nor did the President of the Bundestag declare that the Act of Approval had been adopted by a qualified majority.
Key considerations of the Senate:
I. An act of approval to an international treaty that is supplementary to or otherwise closely tied to the European Union´s integration agenda (Integrationsprogramm) must be measured against Art. 23(1) of the Basic Law (Grundgesetz – GG). Insofar as such an act amends or supplements the Basic Law in substantive terms, or makes such amendments or supplements possible, it requires a two-thirds majority in the legislative bodies pursuant to Art. 23(1) third sentence in conjunction with Art. 79(2) GG. An obligation under international law, assumed in violation of these requirements, that exposes German citizens to the influence of a supranational public authority, violates their right equivalent to a fundamental right derived from Art. 38(1) first sentence and Art. 20(1) and (2) in conjunction with Art. 79(3) GG. In order to safeguard their rights to influence the process of European integration, citizens, in principle, can also claim that sovereign powers be conferred only in the ways provided for by the Basic Law in Art. 23(1) second and third sentence in conjunction with, Art. 79(2) GG (review of the formal aspects of conferral – formelle Übertragungskontrolle). This is because competences conferred on another entity under international law are usually “lost” and cannot easily be regained by the legislator. However, without an effective conferral of sovereign powers, each subsequent measure issued by the EU or a supranational organisation would lack democratic legitimation. Furthermore, the substantive limits to the conferral of sovereign powers that follow from Art. 79(3) GG must always be adhered to.
II. Pursuant to these standards, Art. 1(1) first sentence of the Act of Approval violates the complainant’s right to democratic self-determination derived from Art. 38(1) first sentence, Art. 20(1) and (2) and Art. 79(3) in conjunction with Art. 23(1) third sentence and Art. 79(2) GG, as the Act of Approval was not passed by two thirds of the members of the Bundestag.
1. The Act of Approval confers judicial functions on a supranational court and sets out that this court has exclusive competence to decide on certain legal disputes. Additionally, the Agreement makes decisions and orders of the Unified Patent Court enforceable in any Contracting Member State.
2. The Agreement is supplementary to or otherwise closely tied to the European Union’s integration agenda (Integrationsprogramm) and effectively replaces provisions that did not achieve the majorities necessary to be adopted as EU law.
a) The direct primary law basis of the Agreement is Art. 262 TFEU. It provides for the conferral of jurisdiction on the CJEU in disputes relating to European intellectual property rights, provided there is a unanimous decision of the Council and ratification by the Member States. Until now, the political will has been lacking in this respect.
b) In addition, the Agreement is very closely enmeshed with secondary law enacted on the basis of Art. 118 TFEU. An essential part of the judicial functions of the Unified Patent Court will relate to rights and claims based on EU law the unitary effect of which can only be guaranteed by the provisions laid down in the Agreement. Furthermore, the Unified Patent Court is directly bound by EU law.
c) The Agreement was also pushed forward by EU organs. Since at least the turn of the millennium, the European Commission has insisted on the centralisation of judicial protection in this field. The European Parliament also strongly supported the “European Patent Package”.
The Agreement is open exclusively to EU Member States. The fact that not all EU Member States are also Contracting Member States does not call into question the particularly close ties to the  European Union’s integration agenda (Integrationsprogramm). On the contrary, it is expressly legitimated by the concept of enhanced cooperation and it underlines the close enmeshment with the institutional system of the EU.
3. The Act of Approval is subject to the requirements in Art. 23(1) third sentence in conjunction with Art. 79(2) GG, since it effectively amends the Constitution in substantive terms.
a) The Agreement relates to the Constitution and is a comparable regulation within the meaning of Art. 23(1) third sentence GG given that it contains a provision, which, in its function, is equivalent to an amendment of the Treaties pursuant to Art. 48 TEU. Effectively, the Agreement is an amendment or replacement of Art. 262 TFEU. In Art. 262 TFEU, the Treaty not only calls for a special legislative procedure and a unanimous decision of the Council, but also sets out that provisions conferring jurisdiction shall enter into force only after their approval by the Members States in accordance with their respective constitutional requirements. Thus, Member States considered the creation of novel jurisdiction for the CJEU over industrial property law to be a severe interference with national jurisdiction and designed it as a process requiring ratification. The German legislature classified the process set out in Art. 262 TFEU as a special process of amending the Treaties. By way of the Agreement, the Contracting Members States changed the European Union’s integration agenda (Integrationsprogramm) of the Lisbon Treaty, factually removed the basis of the process provided for in Art. 262 TFEU and rendered a new, EU-inspired type of unified court system for industrial property possible. This is because the necessary unanimity could neither be achieved for the way outlined in the Treaties by Art. 262 TFEU nor for an amendment pursuant to Art. 48 TEU.
b) Regardless of the specific set-up of the patent court system, conferring judicial functions while superseding German courts results in a substantive amendment of the Basic Law within the meaning of Art. 23(1) third sentence GG. Pursuant to Art. 92 GG, judicial power in Germany is exercised by the Federal Constitutional Court, the federal courts and the courts of the Länder. Any conferral of judicial functions on international courts modifies this comprehensive allocation of jurisdiction and, in this respect, constitutes an amendment of the Constitution in substantive terms. The conferral not only affects the fundamental rights guaranteed in the Basic Law, given that German courts can no longer ensure the protection of these rights, but also the specific design of the separation of powers. A significant part of the Member States’ jurisdiction over private and administrative legal matters of economic significance is conferred to the exclusive jurisdiction of the Unified Patent Court by Art. 32 of the Agreement. Under the Agreement, the structure of the German court system set out in the Constitution is modified and supplemented by another court with its own hierarchy.
4. The Act of Approval had to be adopted by a qualified majority pursuant to Art. 79(2) GG. In view of the particular importance of the majority requirement for the integrity of the Constitution and the democratic legitimation of interferences with the constitutional order, a law cannot be enacted when it does not achieve this majority. Thus, the Bundestag did not effectively pass the Act of Approval. It is void
Dissenting Opinion of Justices König, Langenfeld and Maidowski
The “right to democracy” does not give rise to a right that formal requirements for the conferral of sovereign powers be adhered to, which can be relied on before the Federal Constitutional Court. This would lead to an extension of the right derived from Art. 38(1) first sentence GG that fails to recognise its substance and limits. There is no scope for a violation of the substance of the right to vote and be elected in a case that only concerns the failure to adhere to formal requirements for an act of approval. This is because this right shall now apparently also be affected in situations in which the Bundestag does indeed seek to establish democratic legitimation for a conferral of sovereign powers, which is permissible in principle, by way of legislation and in which the Bundestag thus performs its responsibility with respect to European integration (Integrationsverantwortung). When the “right to democracy” is extended to cover the adherence to formal requirements for an effective conferral of sovereign powers, it loses its specific substance, which aims to enable and safeguard democratic self-determination. Beyond ultra-vires situations, Art. 38(1) first sentence GG grants such a right only to the extent that an act affects democratic principles that, pursuant to Art. 79(3) GG, are even beyond the reach of the Constitution-amending legislature. Not adhering to the requirement of a majority capable of amending the constitution or other formal requirements when conferring sovereign powers is neither a previously recognised ultra-vires situation nor does it affect those foundations of the principle of democracy that cannot be changed. Consequently, allowing a conferral to be challenged on formal grounds completely blurs the scope of protection of Art. 38(1) first sentence GG in the context of European integration.
Furthermore, a review of the formal aspects of conferral could ultimately – and contrary to the intentions of the Second Senate’s majority – obstruct and narrow the political process in the context of European integration. It can be expected that this further extension of access to the Federal Constitutional Court in almost any case of conferral of jurisdiction within the scope of application of Art.  23(1) GG will prompt the Bundestag and the Bundesrat to seek a two-thirds majority in order to avoid the risk of a review of the formal aspects of conferral. Thus, it will factually become the rule that a two-thirds majority will be necessary not only for conferring additional sovereign powers on the EU, but also for establishing institutions under international law that have close ties to the EU. This is neither the Constitution-amending legislature’s intention nor is it necessary or beneficial for facilitating the democratic process, since decision-making with narrow majorities must also be possible. Granting broad access to the Federal Constitutional Court could prejudice the democratic process in the future and could, if not prevent, at least significantly delay further steps towards integration. The requirement of a two-thirds majority is extended significantly into an area that was previously covered by Art. 24(1) GG. According to this constitutional provision, only ordinary federal law is required for the conferral of sovereign powers. Permitting a review of the formal aspects of conferral opens up further areas to dispute before the Constitutional Court. This will result in the narrowing of Parliament’s necessary political leeway in the context of European integration and the protection of the democratic process intended by Art. 38(1) first sentence GG may thus be turned into its opposite.

Monday, 30 April 2018

United Kingdom ratifies unitary patent



On 26 april 2018 the United Kingdom has ratified the Agreement on a Unified Patent Court. This is one other step towards making the UPC a reality. Ratification of the UK was one of two remaining requirements. The last ratification that is still required is that of Germany. Ratification in Germany awaits the resolution of a court case  that has been pending for about 10 months now before the constitutional court of Germany.

Assuming Germany ratifies before the Brexit is complete, the Agreement on a Unified Patent Court will go into force. One question is what will happen to the position of the UK after it leaves the EU. I'm assuming that the UK considers it likely that they will remain a member; otherwise what is the point of ratifying it. Some legal confirmation of this would be interesting.


Photo by Meditations obtained via Pixabay under CC0 license (no changes made).








Tuesday, 22 August 2017

EPO publishes unitary patent guide

The EPO has published the "Unitary Patent Guide. Obtaining, maintaining and managing Unitary Patents".  The document tells how to obtain a unitary patent, e.g., how to apply for unitary effect, and what the requirements are. The document also discusses a number of other topics that are relevant for unitary patent proprietors, including the compensation scheme for translations costs and the registering of transfers or licenses.

The document can be downloaded at the EPO. The document looks nice, is well written and seems to be truly useful. Unfortunately,  it will only be really useful once the difficulties surrounding the entry into force have been resolved (see New delay for unitary patent).


Photo by Klimkin from Pixabay under a CC0 license (no changes made).


Wednesday, 19 July 2017

Is the unitary patent pulled into Brexit negotiations?

Michel Barnier during the 12/07/2017 press conference in Brussels

At a press conference by Michel Barnier, Chief Negotiator for the EU, some comments were made about the unified patent court. On the one hand, he mentions that the location of the unified patent court is not part of his negotiating mandate. On the other hand, he also indicates that the location of UPC is being considered, and that it may have to move as a result of the UK's decision to leave the EU. 

I find it difficult to gauge what this could mean for the UPC's prospects. If it is not formally part of the Bexit negotiation, then this might mean that political agreement is needed at some other level? WIPR has an interesting article about it. 

The press conference can be viewed here at the EU website about the brexit negotiations.  The question leading up to the comments about the unified patent court start at 14:00, Barnier's answer about the Unified patent courts starts at 15:35. The link points to the English translation, but other languages are available.

Photo is taken from the European Commission Audiovisual Services






Tuesday, 20 June 2017

Battistelli: “nobody knows today” (what will happen to the London court)

Battistelli speaks to award winner Adnane Remmal

At the occasion of the European Inventor Award 2017 (15 June 2017 in Venice), Benoît Battistelli, president of the European Patent Office (EPO) spoke to reporters about the unitary patent (Euractive reports).

According to him the Unified Patent Court is “is not an EU agency”,and so the London location of the court's central division would not have to be relocated to an EU member state after Brexit is complete. Whether that would be politically acceptable  “would be another issue” and “It will depend on the outcome of the negotiations”. He conceded that “nobody knows today” what will happen with the court.

According to the article we do have a new start date though: early 2018.

I'm not sure I'd bet on that. Let's say that early 2018 means March 2018, and assuming an 8-month lead time between ratification and start, this would mean that by August 2017 the UK and Germany have each ratified the UPC agreement.  Given the politically sensitive issue for the UK and the requested delay of the German constitutional court, it seems a bit optimistic that both will be resolved in two months time.


Photo from the Award ceremony photo gallery at EPO. 



Wednesday, 14 June 2017

New delay for unitary patent




The start of the unitary patent system has a few further setbacks: one less surprising (the United Kingdom), one more surprising (Germany).

Up to now, the goal was to have the system up and running by December this year. That date relied on the timely ratification of the required states. In particular, the United Kingdom ought to have ratified the agreement last May. As that did not happen, the start date of the unitary patent system has also been delayed. The unified patent court has published an update to their timeline, confirming that December 2017 will not be met.

Apart from the ratification of the UK which is not forthcoming, another ratification problem is caused by the Protocol on Provisional Application. This lesser known protocol arranges the starting-up period of the court. Up to now, there are only 11 signatures which is not enough. Interestingly, the United Kingdom has signed the protocol, so no problems there.

The unified patent court has not yet set a new date.

The other setback comes from Germany. According to the Frankfurter Allgemeine Zeitung, the Bundesverfassungsgericht (Germany's constitutional court) has asked the President not to ratify the UPC agreement yet (here is the German article, an English source is here). Someone has brought a constitutional complaint which needs to be settled before ratifying. Kluwer has interesting speculations, that the problem could be more substantial than just the unified patent court. I haven't found confirmation at the website of the Bundesverfassungsgericht yet.

Photo by slon_dot_pics (slon.piccs) via Pixabay under a CC0 license.