Unified Patent Court agreement not contrary to German constitution

The Unified Patent Court, which will bring much-needed consistency to patent litigation in Europe (but which the UK will do without), has already faced problems in Germany once: back in March 2017 it was approved by the Bundestag but not by the right majority, so the decision was declared void. Then the UK dropped out (initially after the referendum the UK government, in an excess of "cakeism", announced that it would still participate although no-one could quite see how that would work, but then someone noticed that the Court of Justice had a role to play in the new system and it suddenly became an impossibly hot potato), which threw the entire project into doubt. But now the Bundesverfassungsgericht (federal constitutional court) has rejected two claims that the UPC Agreement violated fundamental rights under the Constitution and the way seems clear for the Bundestag to approve it again (by they correct majority this time).

As this is not a blog about German constitutional law, and one of the many things that I am not is a German constitutional lawyer, I won't try to explain the details. The court has very helpfully put out a press release in English (here). It's got at least one split infinitive in it, but apart from that the English is excellent: if you prefer, the German version is easy to find from that same link but that's all the language versions there are to choose from.

Unified Patent Court Agreement under threat?

It had to happen: the xenophobic press has noticed (courtesy of Douglas Carswell MP, the sole UKIP member in the House of Commons, who has tabled an Early Day Motion) that however hard Brexit may be it presently does not involve trashing the Unified Patent Court Agreement. Now that the Daily Express is reportedly on the case (see Intellectual Asset Management's report - I could not bring myself to investigate that rag's website, still less to drive traffic to it), I don't give much for the Agreement's future. I am amazed that, after all the hard work creating the Agreement (and all the other good stuff that has come out of the EU - of which even its sternest critic, if apprised of the facts, would surely agree there is some, even if it's only compensation for delayed flights), anyone should think it is a good use of scarce resources to undo it all and recreate something new that probably won't look very much different. Although, of course, the Unified Patent Court, by definition, isn't something the UK could do by itself.

The New European Patent by Alfredo Ilardi

There is an endless stream of interesting intellectual property events in Oxford, to which I always intend to go. Unfortunately, even living a mere 20 miles away, getting into the city is far from simple. Those medieval town planners failed completely to make the place car-friendly, and the profusion of bicycles with particularly (on average) idiotic riders makes driving an unattractive option. There is a bus from the village, but not necessarily a bus back at a convenient time. The train from Didcot is a good choice, but the station is five miles away and parking often ludicrously expensive. So, to cut a long story short, I haven't been to more than a couple of IP events in Oxford in all the time I have lived here.

Receiving an invitation to a book launch, for Alfredo Ilardi's "The New European Patent", published by Hart, Oxford's smaller legal publisher, stiffened my resolve. Meeting the Hart people, especially the founder Richard Hart (a noted runner), was an attraction, and who knows who else might be there? Very few people, turned out to be the answer, and only one member of staff from the publisher, the founder being at another launch party. I learnt from her that the company is now part of Bloomsbury, still presumably spending the Harry Potter millions on acquisitions.

Alfredo Ilardi, former Head of the Collection of Laws and Treaties of the World Intellectual Property Organization, has produced a worthy book. I take issue with its title, as its subject is not a new European patent but a new European Union patent, as the blurb makes clear:

"On 17 December 2012, following a complex negotiation which lasted 12 years, theEuropean Parliament adopted Regulations (EU) 1257/2012 and 1260/2012 and the text of the Agreement on a Unified Patent Court (UPC Agreement). These instruments institute the ‘European patent with unitary effect’, the first unified system for the protection of inventions within the European Union. The two Regulations will be applicable after the entry into force of the UPC Agreement, which was signed on 19 February 2013 by 24 Member States of the European Union. This book traces the evolution of the idea behind the institution of the European patent with unitary effect, including a comparative analysis of the existing parallel regional and international procedures for the protection of inventions. It presents a synthesis of the different phases of the negotiations which led to the adoption of the first unitary patent system within the European Union. In addition it examines the provisions of the two Regulations, of the UPC Agreement and of the jurisdictional system under Brussels I Regulation. Finally, it reproduces in the Appendix the texts of Regulations (EU) 1257 and 1260/2012 and of the UPC Agreement."

But the subject-matter is important, whatever it might be called. A brief glance t the book, however, showed me that the author (as you might expect) takes a rather historical approach, so it might be a bit short on substance: not a practitioner's book, I suspect. And as if to demonstrate the difference between the practical and the academic, which I always tell students are more closely-related in the IP field than in other areas of law, the author extols the virtues of the Community trade mark system. I cannot refrain from responding. To my mind the CTM is an almost unmitigated disaster, a bully's charter, encouraging foreclosure and depletion to such an extent that new entrants are hard-pressed to find a mark to use and established businesses from outside the EU can find their established trade mark useless in the face of ludicrously wide registrations that can only be challenged for lack of good faith (for which read, cannot be challenged). If the Unitary patent turns out the same way, it will not be a Good Thing by any measure except that of the multinationals who will find it conducive to the arrogation of market power.

My brief perusal of the book also took in what I always check for in law books: how many pages are real book, and how many mere stuffing (legislation and the like)? At 164 pages (hardback) it's not unreasonably short, but more than half of it comprises appendices of one sort or another. It makes it very expensive, per page of text, especially nowadays when the legislation is freely available online and in any event is mostly not yet final and likely therefore to change. I may be doing it an injustice: I had only a brief look at the book, and if the UPC will be your stamping ground once you are allowed to stamp in it, this book will surely be essential reading. So too, and perhaps more practical, will be Hugh Dunlop's "European Unitary Patent and Unified Patent Court", the second edition of which was pubished last year by CIPA and which is about one-third (90 pages) text and the rest appendices, probably the same ones as in the Hart book. Now I've got it down from the high shelf where it had rested since I received it, I'll have a look at it and write a review. That's easier when you have a copy of the book ...

Details of the Hart book: ISBN 9781849468336. RSP: £65 / US$130 / CDN$130.
http://www.hartpub.co.uk/books/details.asp?ISBN=9781849468336

Interested in learning a bit about the Unitary Patent and the Unified Patents Court?

If so, listen to the 'Run Through' lecture I have just recorded, and if appropriate claim half-an-hour CPD (for which you'll have to request the multi-choice questions and pay a very reasonable £10 plus VAT).

Agreement on a Unified Patent Court, Cm 8653

The Agreement on a Unified Patent Court has been published by the government, as Cm 8653. A mere 66 pages, which these days wouldn't be long for a judgment: in the shops it would cost you £11.75, but as a download it costs nothing - the wonders of the Internet ...

I am intrigued to see the copyright notice on the inside cover: "Crown copyright 2013", it says. Section 163 tells us that Crown copyright subsists in a work made by Her Majesty or an officer or servant of the Crown in the course of his duties. Her Majesty can be ruled out as a possible maker of this work, but so too I imagine can officers and servants of the Crown - except in the very limited sense that someone has created the typographical arrangement of this published edition. Surely this is a European Union text, but the various Copyright (International Organisations) Orders do not mention the Union, any of the Communities. Interesting. No doubt there is a simple answer, just not one that is very obvious.

Queen’s Speech: Intellectual Property Bill

Actually, more of a Patents and Designs Bill, and it is unfortunate that it's entitled “intellectual property” – hardly a precise enough expression to use in legislation.  But whatever they call it, the Bill will implement changes to the design laws that the Government announced recently in response to a consultation it carried out.  These include introducing criminal penalties for infringing registered designs (but not, thank goodness, unregistered design right).  The concept of what is commonplace for unregistered design right purposes will be tied to a specific geographical area, and the first owner of unregistered design right will be the designer even where the design is commissioned.

The Bill also contains provisions to create a new opinions service, like the one the Patent Office already offers in relation to patents, covering registered designs.  It will also provide for appeals from decisions of the Designs Registry to go to an appointed person rather than to the High Court.

As far as patents are concerned, the Bill will create a framework for establishing part of the central division of the Unified Patent Court in the first instance in London, and local divisions elsewhere in the UK.

There is more to be said about the Bill, and I plan to come back to expand this post in the future.