Is the Unitary Patent good for SME's?

The development if the Unitary Patent and the Unified patent court has always been accompanied by the popular narrative of reduced costs and benefit for SME's. Bjorn Ingve Stjerna has now critically tested the promises and political expectations against the reality which is now emerging and compiled his results in an article which is available for download here on his website, which further provides an impressing resource on background documents on the legislative history.

He comes to the conclusion that the alleged support of SMEs by the “unitary patent system” was nothing more than mere lip service in order to maneuver the “patent package” through the legislative proceedings as smoothly and quickly as possible.

Though this result may not come as a surprise given that the system remains essentially unchanged besides or replacing state-subsidized national courts are replaced with the supposedly self-supporting UPC, this article is a fascinating analysis showing how narratives and factoids or half-truths are capable of catalyzing political processes.

UPC Ratificatons: Finland has ratified, UK makes step forward

The number of states having ratified the UPC agreement is steadily increasing and has now reached nine (nine and a half?). According to the European Council website, Finland is the proud 9th signatory state to have deposited its ratification instrument on January 19th, 2016.

According to the available information (see e.g. here), Finland does not participate in the Nordic-Baltic Regional Division. However, no plans for setting up a local division have been published, either.

Moreover, the UK Government has published a draft Statutory Instrument (SI) for the ratification of the UPC agreement. The instrument raises fairly interesting issues, some of which have already been pointed out in the comments on a recent IPKat post on this issue. The interplay between the EPC, UPC-Agreement and the respective national SIs including the question which one would prevail in cases of conflict will surely be a formidable playground for academics, critics, judges and attorneys handling the first infringement cases. 

13th meeting of the UPC Preparatory Committee

The UPC Preparatory Committee has published its report on its 13th meeting on its website. Alexander Ramsay (SE), the previous Vice Chair of the Committee was elected Chair and Louise Åkerblom (LU) was elected to replace him as Vice Chair. An agreement on the Meditaion Rules was reached. According to the knowledge of this blogger, these Meditaton Rules have bot yet been published. 

A proposal for court fees and the ceiling for the recoverable costs received "favourable comments" but still needs some fine-tuning and there is "emerging consensus" on the Protocol on Privileges and Immunity of the UPC.

Further issues on the schedule for the next meeting are

• the Rules governing the Registry
• the Rules of the Advisory Committee,
• the Service Regulation and
• the design of the judicial recruitment and training process, wherein the latter will be dealt with by a working group in a highly prioritised work-stream.

The next meeting of the Committee will take place 24 & 25 February 2016.

Alexander Ramsay further shares this and some other information in an interview with Euroforum.

Breaking News: Protocol to the UPC Agreement In Force

The News of the day comes from the UPC preparatory committee:

Today, October 1st 2015, a protocol to the UPC Agreement has been signed by representatives of member states in the margins on the Competitiveness Council meeting. This protocol will allow some parts of the UPC Agreement to be applied early. This includes final decisions on the practical set up of the Court, for example, the recruitment of judges and testing of IT systems. The provisional application phase will also be used to allow for early registration of opt-out demands.

This is the latest step towards bringing the Unified Patent Court into operation. In practice there is no immediate impact on business, however, the Preparatory Committee aims to complete its work by June 2016 with a view to the UPC opening at the start of 2017.

A copy of the protocol is available.

Malta: a ratification ... and a problem?

Malta has now definitely ratified the Unified Patent Court Agreement, this event taking place yesterday, 9 December 2014. Malta's accession has been the subject of both speculation and confusion, as reported on earlier PatLit posts here, here, here and here.

Readers might like to consider the ramifications of this ratification in light of what Keltie's Emily Weal and Mark Richardson, writing on the IPCopy blog, call the "Malta Problem", here.

Hat-tip to Darren Smyth (EIP) for spotting this item!

The UPC Agreement: is it compatible with the German constitution?

PatLit has received news of a new article by Ingve Stjerna (Rechtsanwalt and Certified Specialist for Intellectual Property Law, Düsseldorf), which has very recently gone “live”. This piece, “Unitary patent“ and court system – Compatible with Constitutional Law?", can be read in English here and in German here. Explains Ingve:

"The paper mainly addresses the question of whether a ratification of the UPC Agreement would be compatible with the German constitution and describes the special procedural redress in place under German law in relation to the ratification of an international Agreement (in principle, each [natural or legal] person affected can take recourse to the Federal Constitutional Court and request an assessment of its compatibility with fundamental rights).

I am also offering a theory what may be the reason for the recent delay of the Advocate General’s Statement of Position in CJEU proceedings C-146/13 and C-147/13".

PatLit thanks Ingve for his continuing contributions to the discussion of the UPC and for his willingness to investigate issues that many people seem comfortable to ignore.