It is surprising that people of this kind, actually all learned lawyers, some of them even holding the grade of Professor, e.g. IPT Germany. Make an appointment at one of our locations in Cologne, Berlin, Dusseldorf, Frankfurt, Hamburg, Munich or Stuttgart! Once the law has been passed, the court could issue a preliminary injunction to not apply the law to the executive, but not against the judicative. That it might end up with the UP and the UPC never seeing the light is not to be dismissed. But we are still not yet there. I have to say that I really like Tim’s idea of breaking the UP package up into more digestible parts. My sense of this decision is that it is the FCC recognising this reality and quietly and unostentatiously putting the UPCA to sleep. Immerhin ermöglicht diese Beschränkung in der Staatspraxis dem Bundespräsidenten trotz etwaiger Bedenken das Gesetz zu unterzeichnen, da jedenfalls kein „zweifelsfreier und offenkundiger“ Verfassungsverstoß festgestellt werden konnte (vgl. Which the president can ignore and sign anyway. . But now there is a real prospect that the Bundestag will pass the legislation this year. It is accepted that he probably have the competence to look for formal deficiencies. Based on official figures of the EPO, the number of patents applications originating from EU members states represent 45% of all applications at the EPO, whereby 34,2 % stem from EU member states and 32,9% from UPCA member states. For more information or to contact James, visit his Firm Profile Page. But Germany is not a kind of banana republic, where one guy just calls another one and that’s it. It seems to me to be all about the EU and Germany signalling that Brexit is a British problem and that Europe carries on regardless leaving the deserters behind. It is market size that matters and just the UK-Swiss market together is large, particularly for pharmaceuticals. As a court established by treaty participating in the interoperation of European Union law, it bears similarities to the Benelux Court of Justice. Both would be available to the EPC 38 rather than the EU27. But all the companies involved can certainly afford the costs of a multinational litigation. Why would you want to clench tight your eyes to such? Denn der Bundespräsident soll nicht gezwungen werden, sehenden Auges ein verfassungswidriges Gesetz zu unterschreiben. Come on, FCC, engage the brain and do your job properly, in a way that preserves respect for the institution (rather than lazily and carelessly squanders it). The question of supremacy of the EU law over the German Constitution, cf. It is good that there is an institution like the GFCC. 100 Victoria Embankment. Federal Constitutional Court - decision. The question of translations was and still is a source of revenues for firms of representatives. Unified Patent Court BREAKING: German Constitutional Court upholds UPC complaint. Setting up a complicated system like the UPC is thus by no way justified on an economical basis. In order for it to come into force, it must still be approved by Germany. The FCC has now confirmed to journalists that the FCC has asked the Federal President not to sign the bill into law. How this happens is well known and hardly a surprise, given that this is precisely what happened in 2017 (when, as I recall, there were no complaints about this aspect of German law / practice). I realise central litigation is sexy, but central and cheaper renewal fee payments would be of more practical benefit to many. To those who are concerned about the democratic legitimacy (and potential for abuse) of the “gentleman’s agreement” between the FCC and the Bundespräsident, I would merely point out that there are other areas where the grounds for concern are MUCH greater… for example, the provisions of the UPC Agreement (for reasons elucidated in the 2017 complaint) or the “dynamic” interpretation standard adopted by the EBA in G 3/19 (which has been rightly criticised for undermining democratic legitimacy and the separation of powers). 20 July 2020. In Germany, the UPC bill will now be submitted to the German upper house (Bundesrat) for approval later this year. The laws legislators make have to fit with the constitution. This is what happened in proceedings 2 BvR 739/17. As to ‘best way,’ that’s an unproven assertion, and one that is not so amenable to a ‘just do it’ admonition, given as different Sovereigns do not even have a uniform approach to how to use the juristic fictional person of the Person Having Ordinary Skill In The Art. [Dimmer brothers are sometimes jealous]. Unified Patent Court update: German Federal Constitutional Court ruling. What I find a bit outrageous independent of the details of the matter at hand is how easily the “will of the people” as expressed by 2/3 majorities in both chambers can be ignored and disregarded by what seems to be a murky gentleman’s agreement. Further, without an international court to hide behind, the member states would be forced to make more of an effort to align their national laws with the provisions of the international treaty. is a freelance journalist and editor, based in London, United Kingdom. Ratifying a text comprising the famous Art 7(2) UPCA mentioning London as location for a section of the Central Division of the UPC was inviting trouble. In a decision published today, the German … The UK’s ratification indicates its desire to be part of the unitary patent package in spite of Brexit. Hopefully attempts at reform will continue, but that is likely a matter for the next generation, not mine…. UPC – Progress on German ratification. It’s as if you completely missed the point of my post at 6, and want to ONLY see what you have already seen (function of pan-European litigation outfits) and ignore the reality that MANY different forces are at work in our world. To frustrate the will of Parliament requires a good reason. To their big disappointment, the FCC accepted that a patent granted in one official language of the EPO can be valid in France even if it is not translated into French. One which comes to mind is the famous pemetrexed case. Wenn der Bundespräsident die Ausfertigung verweigert, sind deshalb keine Rechtsunsicherheiten zu befürchten, weil das Gesetz erst gar nicht in Kraft tritt. London EC4Y 0DH. The Court’s press release states that sovereign powers should only be conferred in 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.”. In a written statement in the House of Commons on Monday, the British undersecretary for … He is editorial consultant to MARQUES and a partner of Lextel, which provides editorial and thought leadership services to law firms. For our British friends: how does it compare with the UK? Of course some persons in the executive of a country (not Germany) may find such restraints inconvenient and prefer to follow blatantly illegal procedures requiring a unanimous chastisement from the highest court in the land. After the Federal Constitutional Court overturned the UPC legislation in March this year, the prospect of UPC ratification seemed slim. Don’t flatter the British. Near identical patent law and systems to the UK. What good would it bring besides the hope of filling the pockets of a firm like yours? Unified Patent Court (UPC), Germany It is up to Germany to clear the way for the Unified Patent Court.And, reported by dpa, Germany declared that this should happen 2020: Is UPC really coming? Joins McKee, Voorhees & Sease, PLC, Clifford Chance Germany opens a new patent Opposition practice before the European Patent Office, Leading IP SaaS Provider Announces Country Law Updates, ICC Intellectual Property Roadmap to provide business guidance in ever-changing IP landscape. legal-patent… But really, there are still occasions when that attitude really is not appropriate, and does not even begin to cut the mustard. 1 S. 1 GG ihn verpflichten würde, selbst verfassungswidrige Gesetze auszufertigen, könnte er sich aus dieser Zwangslage nur durch einen Rücktritt befreien. Send. The UPGÜ provides for a Unified Patent Court (UPC) for several EU member states to deal independently with disputes concerning European patents and European patents with unitary effect. The FCC has declared that the Parliamentary Act of Approval to the Agreement on a Unified Patent Court to confer sovereign powers on the Unified Patent Court is void on the ground that the German … This should be evident to everyone who has bothered to read at least the first two pages of the FCC decision. Der Bundespräsident muss auch einen politischen Gegner zum Bundeskanzler ernennen, wenn dieser gewählt wird und darf nicht die Ausfertigung von Gesetzen verweigern, weil er sie für politisch schädlich hält. by an independent and impartial tribunal established by law”. This post is part of the following categories: Brexit, EU, France, Germany, Italy, Patents and SPCs, Pharma, Spain. Or do you see a rejection anywhere in the operative provisions of the FCC’s decision? Fact-finding under English law is wildly different from fact-finding on the European mainland. Share . If only one of these satisfies the court, the complaint is fully granted. T +44 (0)20 7400 8000. www.bristows.com Bringing regularly all judges dealing with IP in general, and patents in particular, together would allow a much better European integration at a fraction of the costs induced by a system like the UPC. To be viable the fees have been set at a level which does not allow SMEs to use it, but they would be under the permanent threat of the big industry. Should there be one ultimate pan-EU court of appeal (for issues of validity and infringement) like there is already for EU Registered Trademarks and EU Design Patents? The UPC had been broadly supported by industry and patent practitioners in Europe, who believed that, in combination with the proposed unitary patent, it would make it simpler to protect and enforce patents in Europe. The start of the new system is currently expected for the beginning of 2022. §93d of the Bundesverfassungsgerichtsgesetz. UPC – Progress on German ratification. The German Bundestag is to vote next week on the renewed attempt to enact the Unified Patent Court law. R 109(1) UPCA. There are currently 15 Comments comments. Good analysis of the legal situation. They will offer users a cost-effective option for patent protection and dispute settlement across Europe. The death of the UP is solely in the bad drafting and consequent pushing of legally doubtful contract past the democratic institutions, while at the same time providing these institutions with lies, false promises. Save my name, email, and website in this browser for the next time I comment. The number of true multinational litigations can thus be counted on the fingers of one hand. Other points, like the independence of the judges and their designation have been dismissed as not being sufficiently substantiated. German law makers voted to pass legislation in early 2017 to ratify the UPC Agreement, an international treaty that provides for the establishment of a new UPC system – that is a multi-jurisdictional judicial … https://www.katheraugenstein.com/en/video-on-the-decision-of-the-bundesverfassungsgericht/, The only thing that was left open was the compliance with European law, which I believe should not have been an issue, until the FCC has interfered with the CJEU here: At that point, the gains achievable by other means would have been largely exhausted, thereby making it easier to conduct a proper risk / benefit analysis for the proposed unitary patent and court. If that project had been allowed to proceed, we could by now have had 15 years of streamlined European patent litigation. It is thus an illusion to state that the judge who was meant to sit in London can be replaced by a judge sitting in Paris or Munich. Page 12 of 12. Unified Patent Court Breaking: German UPC legislation challenged again by constitutional complaints. Are you serious? Cons = Existing national systems plus the EPO work ok for many companies so why change? The issue of the UK (and London) being out of the agreement needs to be properly addressed with a proper amendment ratified by all participating states. But I am wondering whether this modus operandi is worthy of a democracy. Tags:Brexit, European Union, German Federal Constitutional Court, intellectual property, patent, Unified Patent Court, Posted In:Courts, Europe, Government, International, IP News, IPWatchdog Articles, Patents. The German Federal Constitutional Court (Bundesverfassungsgericht - BVerfG) has informed the press (see here and here) that last Friday two constitutional complaints (cases 2 BvR 2216/20 and 2 BvR 2217/20) were filed against the draft legislation enabling Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application.
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