The fact that the Bundestag and the Bundesrat again adopt this law by a two-thirds majority should satisfy the objections of the Federal Constitutional Court and ultimately lead to the creation of the UPC. The fact that Britain has in the meantime left the EU and announced, following Brexit, that it no longer wishes to participate in the European unitary patent system is briefly mentioned in the introduction to the bill. However, these brief remarks contain some contentious elements that should give rise to important legal discussions, even if the Bundestag adopts the bill by the required qualified majority. As stated in previous client reviews, the Unified Patent Court (UCA) Agreement is an agreement between the Member States of the European Union (EU) that fundamentally changes the European patent landscape, both for applicants and parties to the proceedings. Overall, the UPCA aims to “improve patent enforcement and defense against unfounded claims. and to increase legal certainty. for disputes relating to patent infringement and validity” in the world`s largest trading bloc. (UPCA, p. 4). The UPCA is not yet in force.
More specifically, once ratified and in force, the UPCA offers holders of a patent granted by the European Patent Office (EPO) the possibility of considering this patent as a patent with “unitary effect” in all EU Member States. Disputes arising from unitary patents will be adjudicated by a single court, namely the Unified Patent Court (UPC), and decisions on such disputes, including decisions on infringement and invalidity, will be binding throughout the EU. In accordance with Art. 65 (1), 7 (2), in conjunction with Annex 2 of the UPCA, the London Section of the Central Division is responsible for patent litigation in the important fields of humanity, chemistry and metallurgy. Its disappearance as a result of the United Kingdom`s exit from the UPCA would have the effect of transferring that case-law to the remaining sections of Paris and Munich for a transitional period. The European Parliament has published here the European Commission`s response to questions from German MEP Patrick Breyer (below in full) on Germany`s right to ratify the Unitary Patent Convention (UPCA) after Brexit. Mr Breyer considered that Germany no longer had the right of ratification, since the United Kingdom (which has ratified) a “third country” of the case. 216 TFEU and that, in accordance with EU case-law (C-22/70), Member States are not entitled to conclude agreements with third countries which affect EU rules or modify their scope. The Commission`s response (in full below) summed up that it considered that the UK`s withdrawal from the EU would not prejudice the UPCA ratification process in Germany, adding that the Commission would be in favour of early ratification by Germany. It should be noted that the Commission`s statement seems to be based on the assumption that both the single patent and the UPC system are only open to EU Member States, a view that is not generally shared in Brexit discussions. Mr Breyer`s question was: “1.
Can the Commission confirm that Germany no longer has the right to ratify the UPCA? 2. Will the Commission advise the German Government not to ratify the UPCA in its current form? 3. If Germany ratifies the UPCA in its current form, would the Commission initiate infringement proceedings against the UPCA? The Commission`s answer (by Thierry Breton, Commissioner for the Internal Market) was as follows: for ratification, it was sufficient to define the three countries which, at one point, validated most patents as necessary for the entry into force of the UPCA, i.e. Germany, France and the United Kingdom. Today, Britain`s position is taken up by Italy, or even the Netherlands. The numbers will show that. If the UK withdraws from the UPCA, it will lose its status as a MEMBER STATE of the UPCA. Italy, the most active country in the field of patents, will automatically rise among the other countries. . . .