EPLAW PATENT BLOG

UPC – Germany to continue preparations for the UPC

Posted: March 27th, 2020

A press relaease issued yesterday by Christine Lambrecht, the German minister of Justice and Consumer Protection states:

“I will continue to work to ensure that we can provide the European innovative industry with a single European patent with a European patent court. The Federal Government will carefully evaluate the decision of the Federal Constitutional Court and examine ways to remedy the lack of form found during this legislative period. ”

The full press release (in German) can be read here.


2 Responses

  1. Attentive Observer says:

    The last weekend, 21/22 March, the Süddeutsche Zeitung, a reference paper for the whole of Germany, published in its electronic version a complaint of the Confederation of German Industry (BDI) claiming that the decision on the UPCA by the German Federal Constitutional Court was not helping industry (in original “ein Bärendienst erweisen”) and it was thus an unnecessary set back.

    https://www.sueddeutsche.de/wirtschaft/patentrecht-ein-baerendienst-1.4852498

    The lobbying of the big industry and the lawyers helping it must have worked superbly. Letting a few days later the Minister of Justice claim that the vote will be recast within the present legislature shows how biased the information she must have received. Recasting a vote before amendment of Art 7(2) UPCA is simply stupid.

    But thinking seriously about the issues raised by the UPCA is not something you can expect from all the supporters of it. They simply want to fill their pockets. It is as brutal as that.

    Another point worth mentioning: looking at the statistics published by the EPO it manifest that the number of applications stemming from EU member states has stayed for many years at around 30%.

    Where is then the interest to open the door to facilitate litigation by applicants from non EU member states? How is this helping European Industry at large and European SMEs in particular? I fail to see the necessity for something like the UPCA, the more so since it is not even valid for the whole of the EU.

  2. The Convention Watchdog says:

    One of the fundamental principles of the Paris Convention is the principle of national treatment. It means that the member states are obliged to treat foreigners in the same way as their nationals. It is much more far reaching than the principle of reciprocity well known in the Law of Treaties and has helped to increase the standard of protection of industrial property worldwide over more than 100 years. Therefore, the argument that non-Europeans profit more from the UPC than Europeans is beside the point. The obligation of a State not to discriminate foreigners is balanced by the fact that its nationals are not discriminated abroad. Therefore, the right question is whether the unitary patent system is good for European industry, and if yes, the IP system as a whole should be improved.
    The withdrawal of the UK makes the system less attractive and it should be the first concern of its proponents how to compensate for this loss. This requires a new fee structure implying that the member states do not insist on income from the unitary patent system for which they do not render a service in return. Not less important is that a modified UPC system should be based on safe legal ground. The idea that it is the Administrative Committee’s task to design a modified UPCA has met with plausible criticism and does not appear to avoid legal attacks against the competence of the future Court and the enforceability of its decisions.
    The key question in the FCC’s decision is the democratic principle. It is hardly compatible with this principle that an Agreement on a court system enters into force and an administrative body created by the Agreement is entrusted with the decision on essential features of the system. Finally, the UPC in the form of the present UPCA was developed behind closed doors by a few people. A broader more democratic round of discussion in which legal and commercial aspects of the system will be addressed in a way safeguarding that legal concerns and the interests of users at all commercial levels, particularly those of SME’s, are adequately considered.

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