back to article Europe's one-patent-court-to-rule-them-all rocked by 'Brexit, EPO reforms, German laws'

Plans to introduce a Europe-wide patent court may be delayed still further after the German parliament, government and patent lawyers asked for an extension on submitting responses to a legal challenge. The Unified Patent Court (UPC) have been on the books for five years, and was supposed to be in place by 2015 although it ran …

  1. lglethal Silver badge
    Facepalm

    Breach of contract?

    "Benoit's decision to take on a political role as deputy for culture in his home district of Saint-Germain-en-Laye, just outside Paris, France."

    How is that not a breach of contract? I've never heard of any contract where you can just decide to take another Job without approval from your employer. Which in this case would be the EPO Board, and considering that they want him out, I would be surprised they would agree to something like that.

    Additionally, I would be hugely surprised if there wasnt something about being politically neutral in the contract with a Position like this. If not, which ever lawyer wrote up the contract should be fired on the spot.

    Still with everything else going on at the EPO, I guess None of this should be surprising...

    1. Gio Ciampa

      Re: Breach of contract?

      Works the other way too - given (some of) our MPs proclivity for second/third/fourth jobs...

  2. Flocke Kroes Silver badge

    How does the government work in Germany?

    "With the appropriate political pressure applied, it should pass"

    Do they have a bunch of politicians who vote on issues to the benefit of their constituents or a bunch of yes men who rubber stamp decisions made by some other authority?

    1. John Sager

      Re: How does the government work in Germany?

      Was this a rhetorical question? Most parliaments tend to follow the second model, with the 'authority' ranging from the Politburo via the President/Prime Minister to the most munificent lobbyists.

  3. Anonymous Coward
    Anonymous Coward

    Brexit?

    The EPO is not an EU institution, many of its 38 members are not EU members, so why should Brexit change anything?

    1. David Roberts

      Re: Brexit?

      Hmmm....noted the downvote already, I was just about to respond that the patent office to be created is European, but how it is to be formed and the relationship to the EPO isn't really clear from this article.

      If it is going to be an EU body to "rubber stamp" the output from the EPO then this could be an issue.

    2. Anonymous Coward
      Anonymous Coward

      Re: Brexit?

      That is just Kieren showing his political views - Brexit has nothing to do with it at all.

      1. kierenmccarthy

        Re: Brexit?

        Yes, that's right, I don't like Brexit so I just make up the fact that one of the core arguments in front of the German constitutional court is that the UK leaving the EU makes the UPC invalid. Despite, you know, the actual complaint.

        Next week: I will take on companies that don't fill their packaging (ground coffee and chips/crisps the worst offenders) by writing an article about net neutrality.

    3. codejunky Silver badge

      Re: Brexit?

      @AC

      If it rains and people dont want it to its because of Brexit. I am amused that our leaving might cause them to have to go back and remake agreements for years. What a bureaucratic mess. Glad we are getting away from it.

    4. Len

      Re: Brexit?

      As I understand it the Single European Patent requires a role for the European Court of Justice as a legal backstop.

      At one point Theresa May has said that wants no role for the ECJ at all, anywhere, post Brexit. This was when people still thought her opinions mattered in the grand scheme of things. Since then quite a bit has changed and the UK is now very likely to retain a number of links with programmes under EU law (Horizon 2020 for instance) and thus with the ECJ as final arbiter. The UPC is most likely going to end up being one of those things where the UK will decide to stay engaged with post-Brexit. The problem is that until that is 100% guaranteed (and it may take a year until that is clear) it is not easy to put a signature underneath approval for a next phase of the project.

      1. Anonymous Coward
        Anonymous Coward

        Re: Brexit?

        Theresa May has said that wants no role for the ECJ at all, anywhere, post Brexit.

        Within the UK, perhaps, but courts are there to deal with issues in their jurisdictions. If the ECJ has jurisdiction over European patent disputes, then any country (EU or not) would have to go to the ECJ to lodge such a dispute. It's still got nothing to do with Brexit. If the UK wanted to lodge a protest about some US situation it might have to go to the US Supreme Court, that doens't mean that the Supreme Court has any jurisdiction over other unrelated UK issues.

        1. Len

          Re: Brexit?

          The question is whether the UK wants to stay in the ECJ's jurisdiction for patent disputes. If it decides to stay in it then British companies defending their patent would have the ECJ as their final arbiter (after having gone through the UPC of course).

          That is a different situation with regards to the US Supreme Court as British companies are not in their jurisdiction. They would only have to deal with the US Supreme Court if their case involved an American patent, not if it involved their own (European) patent.

          I don't understand what you mean with your comment about 'unrelated UK issues'. The ECJ only deals with EU law, it doesn't handle 'unrelated UK issues' and Brexit will not change that.

          1. This post has been deleted by its author

  4. The questioner

    @Anonymous coward

    Neither the EPO nor the UPC are EU institutions. However, this does not make Brexit irrelevant to the UPC Agreement.

    Firstly, Unitary Patents (which will be handled exclusively by the UPC) are a creature of EU law.

    Secondly, the UPC will from time to time be called upon to apply EU law in the context of the cases before it (eg in connection with the Regulations governing SPCs or the Directives governing the "Bolar" exemption or the patentability of "biotech" subject matter).

    Thirdly, the UPC Agreement itself specifies that the Participating Member States MUST be EU Member States. Hence the question over whether the UK's imminent departure from the EU will effectively kill the Agreement.

    Finally, there is the question of whether it is possible for a court (such as the UPC) having an "international" character to preside over matters involving EU law. This is no laughing matter. To illustrate: there is no obvious way of forcing the EPO (another international institution) to respect EU law, and we have all seen how that has worked out (eg with breaches of the ECHR). It is therefore vitally important to ensure that the UPC is subject to adequate checks and balances. This necessarily involves considering how (or whether) the UPC is FORCED to follow judgements of the Court of Justice of the EU. At present, it is not clear which (if any) mechanisms could ensure this post-Brexit (or, in the alternative, whether the UPC will even be able to ask the CJEU to provide its opinion on points of EU law).

  5. Bakker

    Clarification?

    There seems to be a couple of misunderstandings here.

    BB has not just become deputy mayor, he has been for a long time. Indeed I think he is not councillor/deputy mayor for the district but is also elected at the next level up.

    However, EPO staff are allowed to take up representative positions (whether this applies to contracted and senior staff I do not know) but in my day if elected a staff member could ask for (unpaid?) leave to perform elected duties.

  6. Potemkine! Silver badge

    Fake news

    " This time, it is Benoit's decision to take on a political role as deputy for culture in his home district of Saint-Germain-en-Laye,"

    This is misleading. Batistelli was elected as town councilor in 2008, more than 9 years ago. He was reelected in 2014. He was involved in local politics before being elected as president of EPO in 2010. I guess that people who elected him in 2010 were aware he was elected as town councilor two years before, weren't they?

    Looking at the mentioned article, he was recently elected by the council to become deputy mayor in charge of cultural affairs when he was previously as counselor in charge of the municipal theater.... What a scandal!

    1. The questioner

      Re: Fake news

      Is it really that simple?

      The Standards of Conduct for the International Civil Service (https://icsc.un.org/resources/pdfs/general/standardsE.pdf) may relate to employees of the UN. However, I would have thought that the same standards ought to be applied to senior managers (and particularly the President of) an international organisation such as the EPO. In this regard, paragraph 48 of those Standards could be important:

      "In view of the independence and impartiality that they must maintain, international civil servants, while retaining the right to vote, should not participate in political activities, such as standing for or holding local or national political office".

      So, does Mr Battistelli's role as deputy mayor in charge of cultural affairs in Saint-Germain-en-Laye counts as "local political office"? I do not know the answer to this question. However, the above considerations do at least suggest that there MAY be a case to answer.

  7. The questioner

    A scandal?

    A little digging reveals the answer, Mr Battistelli's position in St-Germain-en-Laye would indeed appear to qualify as "political office". Indeed, the (opposition) socialist party wrote a blog post discussing Mr Battistelli (http://pssaintgermain.fr/office-europeen-des-brevets-laffrontement-social-tourne-au-drame/), describing him as "conseiller municipal de la liste de droite majoritaire au conseil municipal de Saint-Germain".

    Thus, it is pretty clear that Mr Battistelli holds office in St-Germain-en-Laye due to standing as an official candidate of the UMP party (Sarkozy's bunch).

    But the line-crossing does not stop there.

    First, there are unconfirmed (and unconfirmable) rumours that Mr Battistelli's place of employment is not Munich but in fact St-Germain:

    http://ipkitten.blogspot.co.uk/2014/07/7000-epo-employees-in-de-nl-at-be-plus.html

    http://www.iam-media.com/blog/detail.aspx?g=e51e85b5-4508-4147-a0cb-e9028c9cad90

    Without the details of his contract of employment being made public, we will never know whether there is any truth behind this rumour. However, possible advantages for Mr Battistelli would include: retaining his political position by specifying his primary residence as St-Germain; and qualifying for hefty expenses for travel to his day job in Munich. At least an element of truth in the rumour is therefore not beyond the bounds of possibility.

    Secondly, there are a number of official engagements that Mr Battistelli has conducted (or has arranged to be conducted) in St-Germain, for example:

    2011 trilateral office meeting (https://www.trilateral.net/news/pressrelease20111110.pdf)

    2016 EPO-SIPO meeting (https://www.epo.org/news-issues/news/2016/20161005.html)

    2018 inventor of the year award (http://www.epo.org/learning-events/european-inventor/event.html)

    This presents a clear conflict of interest, in that the result is money from Mr Battistelli's day job being poured into the very district that he represents in his political office.

    So the clear answer is yes, there is a scandal here.

  8. Hatchoo

    political abstinence?

    I always found it problematic, that the head of a patent office lobbies in favour of the UPC, which is a purely political decision...

    He may lobby to get the registration and administration of the fees under its control, but the office should refrain from influencing this debate, and if the present arguments, they should be balanced with pro and comtra, and not only the pros which were hard to prove. They searched long to find enough examples for their "case-study" of medium-sized business wanting the UPC.

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