Unified Patent Court question illustrates complexity of Brexit, Europe & the EU

Rare are the times that intellectual property questions sneak into the conversation of a major Brookings Institution, who were discussing, “Europe and the U.S.: The old order faces a new world,” in front of a live audience and the nation, via C-SPAN, were hit with a very specific, “in the weeds” type question from one audience member. “When can we expect to see the [European] Uniform Patent Court treaty ratified and why is Germany holding up the process?” The panel of experts made a good faith attempt at an answer, but admitted their knowledge in this particular area was limited. After the question was addressed, a sea of diplomats, lawyers, academics, and scholars in the audience could be seen googling “Uniform Patent Court.”

European Patent 0080627B1
Opening & closing for retractable fountain pen nib
25 Feb. 1987 European Patent Office

Washington think tank. Experts at the

The UPC may not be sexy like Brexit, Russia, or China in terms of US – European wonk talk, but the entangled mess is worthy of analysis, because it is directly related to Brexit, domestic state parochialism, harmonization of patents, and a developing a more integrated EU.

In June 2017, a complaint was submitted to Germany’s Constitutional Court, asking the court for an einstweilige Anordnung, to temporarily enjoin the ratification of the German Unified Patent Court Agreement Act. At the request of the court, the Office of the Federal President agreed to suspend the ratification process until a decision on the merits has been rendered by the court.

The complaint was submitted by Düsseldorf IP lawyer Ingve Björn Stjerna, and alleges a violation of the right to democracy, "democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC", "perceived lack of an independent judiciary under the UPC", and non-conformance of the UPC with EU law.

At the end of August 2017, the Federal Constitutional Court “invited the German Government, the German Bar Association and the European Patent Lawyers' Association to provide observations in response,” according to Lexology.

As of 15 September 2017, there is still no indication on a timeline for resolving the stay of ratification. Germany is an essential element for the UPC to come into force, as the treaty requires at least 13 EU states ratify the UPC under their domestic constitutional framework, plus the three largest patent filing states at the time of adoption. Those three states, as of 19 February 2013, were France, Germany, and the UK.

Courts for resolving patent disputes will be in France, Germany, and the UK, along with regional courts in other states. The registry and court of appeals will be located in Luxembourg.

In contrast to Germany, the UK did ratify acts which pave the way for the UPC to come into force, however, in navigating its exit from the EU, the UK has to make the case that the Unified Patent Court is the product of an independent treaty and not an EU institution. According to BNA, the May Government has said Brexit will end the Court of Justice of the European Union’s “direct legal authority” over the UK. On 23 August 2017, the UK government released a position paper which emphasised that parties to international treaties commonly agree to submit disputes to a non-state court.

The future of the European Patent Court is an analogy for the future of Europe; a complex web of rules, state sovereignty, Brexit, pressure from international business, and a general lack of leadership to define a future and pursue it. The experts at Brookings should rest assured that the question they were posed is one that even constitutional judges in Germany are having a difficult time answering.