back to article The dream of a single European patent may die next month – and everyone is in denial about it

It has been years in the making and Europe’s largest law firms are smacking their lips in anticipation but the long-held dream of a single European patent system may die next month – and everyone appears to be in denial. “It would be realistic to expect the UPC to be operational in early 2021,” said the head of the Unitary …

  1. Charlie Clark Silver badge

    ECJ juridisction

    The German Constitutional Court has already agreed in several instances that sovereignty may be ceded to the relevant supranational institutions: UN, ECJ and the ECB being notable examples. Brexit is a problem, but for the EU fortunately only for a couple of weeks. After that the rules can be redrafted so that the UK isn't a compulsory signatory but can join as an observer (similar agreements with non-EU states exist).

    1. DavCrav Silver badge

      Re: ECJ juridisction

      "After that the rules can be redrafted so that the UK isn't a compulsory signatory but can join as an observer (similar agreements with non-EU states exist)."

      If the reules are redrafted, it has to go through the whole approval process again.

      And without the UK, the EPO is still important, but much less so. I expect there to be less than zero chance of the current government of handing control of patents to the EU, especially if it's not part of the trade deal.

      1. DavCrav Silver badge

        Re: ECJ juridisction

        "And without the UK, the EPO is still important, but much less so."

        Sorry, I meant that without the UK, the UPC is still important. As far as I know, the UK has no plans to leave the EPO.

      2. Charlie Clark Silver badge

        Re: ECJ juridisction

        Getting the rules amended sans UK and approved is likely to be pretty easy. The UK won't have much say in the matter and is likely to like it if it wants any kind of trade deal. Welcome to asymmetric trade negotiations.

        1. DavCrav Silver badge

          Re: ECJ juridisction

          "Getting the rules amended sans UK and approved is likely to be pretty easy."

          Won't it have to go through every national parliament again?

          1. Charlie Clark Silver badge

            Re: ECJ juridisction

            Possibly, but all anti-UK changes will be pretty easy to push through, thanks to Johnson's fecking appalling attempts at diplomacy. There will be the usual haggling over where the court should be, that's all.

            1. DavCrav Silver badge

              Re: ECJ juridisction

              Hmm. You (not just you) seem to think that the EU27 are a very united bunch. In fact, without the UK in the mix, they will be slightly more united, but only because they will be pulling in 27 different directions, rather than 28.

              The UK could be relied upon by a bunch of countries to throw a spanner in the works of most of the stupid Euro-nonsense, and so what came out was the better stuff. Now the Dutch, Danes and Swedes will have to do their own objecting.

    2. I ain't Spartacus Gold badge

      Re: ECJ juridisction

      The German Constitutional Court has already agreed in several instances that sovereignty may be ceded to the relevant supranational institutions: UN, ECJ and the ECB being notable examples.

      This is true. But within limits. It was the ECJ itself that said it had supremacy over national courts in judgements, it wasn't written into the treaties. I don't think it went into the Lisbon Treaty either, though I might be remembering that wrong - I'm sure someone will correct me if so.

      However, even then, the German constitutional court has said that it is the only guardian of the German constitution (though isn't it a basic law and not a constitution?), and it has the final say. Changes were made to the Eurozone bail-out system for example, even though the ECJ had ruled it legal, in order to comply with objections from the German court.

      So you never know. Although one of its stipulations was that the German government don't have the right to give unlimited commitments of money to the EU, they have to be limited to known amounts and voted on, without changing the constitution/basic law. But I'm sure one of the things the German economists who took the case argued was that the ECB Target 2 system was just such an unlimited committment - and the court didn't rule in favour of that. Even though it clearly is such. German Target 2 exposure is now heading for the € trillion mark - the Italian Central bank alone owes the Bundesbank €400 billion.

      It's one of the hidden flaws of the Eurozone, where the balances were supposed to equal out over time. And haven't. Though I'm still not convinced it isn't so complicated as to not matter - in that even if Germany has lost a vast amount of wealth via the system, the number isn't really actually that vast when you compare it to wealth generated in the 20 years of the Euro project. Plus the "debt" would be impossible to collect anyway - so it's better to just call it a central bank accounting system and forget all about it.

      1. Charlie Clark Silver badge

        Re: ECJ juridisction

        though isn't it a basic law and not a constitution

        It's both: Grundgesetz == basic law and Verfassung == constitution. The two are used interchangeably.

        There are several issues where the GCC has unequivocally ceded sovereignty to the ECJ. The ECB judgement made reference to it – the ECJ sits above the GCC – but the ECB was trying to do things that weren't covered by its mandate (buying national debt directly is explicitly prohibited) so that the Bundesbank could, and is, restricted in its asset purchases. The rulings from "Karlsruhe" as the court is also referred, though another court also sits there, are usually very well worth reading.

        1. I ain't Spartacus Gold badge

          Re: ECJ juridisction

          Charlie Clark,

          Thanks. I seem to remember reading somewhere that there was a difference between basic law and constitution - but German politics isn't exactly my area.

  2. Phil O'Sophical Silver badge

    There's no particular reason that "Europe" has to mean "EU". There are other European organizations, the European Space Agency comes to mind, whose membership extends far beyond the EU.

    A patent court should be able to determine it's jurisdiction with the agreement of the desired members. If it wants to be EU, fine. If it wants to be pan-European, fine. Obviously (as noted in the article) the legal constraints will be different. It may be easier to restrict it to the EU, but would that be useful? In something as complex as the area of patent law, picking a solution that's easy is likely to result in one that's inadequate.

    The main issue here must surely be what it is intended to achieve. It seems that the idea is that inventors will be able to file a single patent and have it cover multiple countries, rather than face the cost and difficulty of filing separate patents in every country. A sound idea, but that does require all the countries involved to protect IP in the same way, and the bigger the EU gets the harder it is to have 100% agreement on any complex issue. Many of the existing EU directives are intentionally ambiguous, to allow countries to fudge things enough to claim compliance, but they only work because the countries want them to. Big corporate lawyers earn their living by finding loopholes in such agreements.

    I can't help but feel that (even without the sordid precedent of Battistelli and the EPO) any patent organization that tries to create a unified set of rules across the EU will do nothing but make lawyers rich, while the small inventors who might hope to gain from a unified international patent will be sidelined.

    1. rg287 Silver badge

      There's no particular reason that "Europe" has to mean "EU". There are other European organizations, the European Space Agency comes to mind, whose membership extends far beyond the EU.

      The European Patent Organisation is exactly the same. It is HQ'd in Munich and is not legally bound by - nor a part of - the EU. As with ESA, EPO members include nations such as Switzerland.

      Battistelli aside, a cynic might suggest that the UPC is an attempt to insert a shim into the EPO's neutrality and bring them into the EU bit-by-bit by means of layering in legislation that only applies to EU members and transitioning the EPO's work to EU work, much like the EU doing a MitM on ESA funding and turning ESA projects into "EU Projects delivered by ESA". Galileo springs to mind.

      There is no legitimate reason why a European Patent administered by the EPO should not be valid in all EPO member states (provided they all ratify it, etc). The EU doesn't need to come into it other than compelling all EU Members to ratify the EPO standard (not theirs!) so that IP can't be subject to a form of arbitrage where copyright infringement can take place within the single market, which would cause all sorts of issues - i.e. Free Trade and Single Market rules could conflict with EPO signatories blocking imports of an infringing product from another EU but non-EPO nation).

    2. Cuddles Silver badge

      "There's no particular reason that "Europe" has to mean "EU". There are other European organizations, the European Space Agency comes to mind, whose membership extends far beyond the EU.

      A patent court should be able to determine it's jurisdiction with the agreement of the desired members. If it wants to be EU, fine. If it wants to be pan-European, fine."

      The problem seems to be when the general becomes the specific. Yes, there's no reason Europe has to mean EU, and a patent organisation can certainly extent over more than just the EU, as the EPO demonstrates. The trouble is that the specific proposal for the UPC is defined as being only for the EU. And it also requires the UK to be a signatory. That's a bit of a problem. The whole thing could go back to the drawing board and either accept non-EU members or get rid of the bit about the UK, but that would involve starting over again rather than just getting the existing agreement up and running.

      So sure, there are all kinds of ways to think about how such an idea could be implemented. The problems are with the actual proposal currently on the table. And whatever the decision turns out to be regarding Germany's constitution, any deal that requires a specific country to participate while simultaneously banning them from doing so has a bit of an issue.

  3. Anonymous Coward
    Anonymous Coward

    A perfect example of what is wrong with the patent system.....

    The sloping toilet which a company is trying to patent but was already on the market 108 years ago.

    https://www.bbc.co.uk/news/technology-50835604

    1. gerdesj Silver badge
      Windows

      All sorted

      "A toilet designed to slope downwards slightly, making it uncomfortable to sit on for more than a few minutes, has been pooh-poohed on social media."

      I pooh pooh your pooh pooh ...

      1. OssianScotland Silver badge

        Re: All sorted

        And I raise you a Tigger!

        1. stiine Silver badge

          Re: All sorted

          Why only a single Tigger?

          1. Anonymous Coward
            Anonymous Coward

            Re: All sorted

            Why only a single Tigger?

            There can be only one...

            The wonderful thing about Tiggers, is Tiggers are wonderful things. Their tops are made out of rubber, their bottoms are made out of springs. They’re bouncy, trouncy, flouncy, pouncy, fun, fun, fun, fun, fun. But the most wonderful thing about Tiggers, is I’m the only one. IIIII’m the only one!

          2. Anonymous Coward
            Anonymous Coward

            Re: All sorted

            Possibly because he is the only one?

            1. I ain't Spartacus Gold badge

              Re: All sorted

              But, if Tigger is the only one - does that mean he decapitated Connor MacLeod?

              1. Phil O'Sophical Silver badge

                Re: All sorted

                Or he is Connor MacLeod...

                1. gerdesj Silver badge
                  Paris Hilton

                  Re: All sorted

                  You lot had one job. One job.

                  Where the hell are the Black Adder quotes!

                2. Michael Wojcik Silver badge

                  Re: All sorted

                  Hmm. That might be the rare film remake that I actually would watch.

      2. DavCrav Silver badge

        Re: All sorted

        "I pooh pooh your pooh pooh ..."

        In the end did they have to disband the regiment?

  4. DavCrav Silver badge

    "That court is likely to be moved to mainland Europe but that still leaves the main issue: can a non-EU country be a part of a European unitary patent system?"

    Here's another issue then: will the UK, particularly in its current tizz about foreign courts, still want to be part of the EPO if there is not London-based branch of it? And if they withdraw, it collapses again.

    1. DavCrav Silver badge

      As above, I once again write EPO when I mean UPC. Sometimes it takes longer than 10 minutes to find an error, Register!

      1. Pascal Monett Silver badge

        10 minutes is enough for spelling errors, and obvious mistakes. Anything else and you have, as you have used, the additional comment.

        There is no way to change that without endangering the coherency of the entire forum thread.

        We all need to think twice and proofread before submitting, myself included.

        1. Commswonk Silver badge

          We all need to think twice and proofread before submitting, myself included.

          It worries me that there might be / are people who don't.

          1. moiety Silver badge

            You can't get a proper raging froth on if you're stopping to proofread.

            1. edris90

              Sure they can. Emotionaly inebriated humans quite are capable of self-sustaining their inebriation across years.

              What's a few minutes.

          2. [VtS]Alf

            As a non-native English tongue, I have my moments where I see a mistake in my spelling or grammar, but often after the 10 minute limit.

            To prevent too much clutter in the comments with posts like “*colour instead of color”, I would like to be able to correct my err indefinitely.

            Just my point of view

            1. moiety Silver badge

              Problem with that is it can lead to shenanigans. Amongst other things, it enables people to recraft their comments to make anyone responding to the original wording look like idiots. Doesn't sound that bad on the face of it, but a dedicated revisionist or two can turn a forum toxic in a surprisingly short amount of time.

  5. Doctor Syntax Silver badge

    Anything to do with patents seems to result in a tangled mess. And the first law of tangled messes is that once a critical complexity is achieved all attempts to untangle them make them worse. Where's Alexander the Great when you need him?

    1. moiety Silver badge

      Anything that attracts patent lawyers seems to result in a tangled mess

      FTFY

      1. Will Godfrey Silver badge
        Happy

        Anything that attracts lawyers seems to result in a tangled mess

        FTFY

        1. Benson's Cycle

          The more the tangle, the bigger the fee.

  6. ratfox Silver badge
    Mushroom

    Good, good!

    My opinion is anyway that we should kill the patent system; it stifles innovation and only rewards the rich. Viva la revolución!

    1. overunder Silver badge

      Re: Good, good!

      In 2020 I can't help to agree. If the entity filing the patent isn't rich already, it turns out that they are only filing in hope of becoming rich via extortion. It really has come to that, it really has.

      1. vtcodger Silver badge

        Re: Good, good!

        "If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

        Bill Gates - internal Microsoft memo 1991.

  7. zoobab

    Software patents v3.0

    This UPC court will have the last word to validate software patents EU wide, the CJEU will have nothing to say about patent law in Europe.

    This is like giving the keys of the patent kingdom to the same people who have been trying to validate software patents for the last 30 years.

    The probably is high that this specialized patent court will drift and become very pro-patent, like it happened with the CAFC in the US.

    For the last 15 years, the Supreme Court of the US (SCOTUS) has corrected the deviant practice of those courts, notably on software patents, business method patents, automatic injunctions, and others, and we are now in a match between SCOTUS and CAFC with a score of 8-0 !

    If the CJEU does not have the last word on patent law, why do we build Europe in the first place? And why do we make an exception for patent law?

  8. Blackjack

    Brexit voters will be happy

    This means UK patents will still exist. And yes a single patent for the whole Euro zone would have been great but they hate the Euro zone so is party time for them.

    1. Old Tom

      Re: Brexit voters will be happy

      As far as I can tell from minimal research, neither the European Patent Office nor its parent the European Patent Organisation is in any way connected to either the EU or the Euro Zone.

      1. Ken Hagan Gold badge

        Re: Brexit voters will be happy

        My equally extensive research into Brexiteers suggests that they are unable or unwilling to distinguish "European" from "EU", so I'm not sure your observation actually matters.

        1. Stern Fenster

          Re: Brexit voters will be happy

          I rather thought the principal Remain strategy was to confuse Europe with the EU; thus anyone disliking the EU must dislike Europe, which means they dislike foreigners, which mean they're racist. Neat. Personally, I haven't grasped why it should be racist to dislike a fundamentally Thatcherite, neoliberal managerial empire like the EU; but then, I never mistook the infinitely fascinating collection of countries for the political organisation superimposed on them. See http://www.surmise.org/choler_brexit.html

          (All horribly off topic, but I get bored with being called a racist...)

          1. Spacedinvader

            Re: Brexit voters will be happy

            "they dislike foreigners, which mean they're racist." Nope. Xenophobic.

      2. Blackjack

        Re: Brexit voters will be happy

        The main force behind Brexit was not just leaving the EU, but leaving behind regulations that make Britain less "independent. The Euro patent being approved means the UK loses money because that would make patents that just cover the U.K useless.

        And that's basically what a Brexiter would say. Nevermind the billions in earnings the U.K will lose thanks to leaving the EU.

  9. Tigra 07 Silver badge
    Facepalm

    "can a non-EU country be a part of a European unitary patent system? If the answer is no, the entire thing needs to be redesigned because the UK was a compulsory signatory. If the answer is yes, then where and how do you draw the line? Can Japan join the UPC? Can the United States?"

    We're still on the same continent, which is a better argument than the US or Japan would have.

    1. Michael Wojcik Silver badge

      Under a number of models, the European countries and Japan are both part of the continent of Eurasia. Regarding Europe is a continent unto itself has a long history but is by no means uncontroversial. Certainly, those who consider the Americas to be a single continent - a convention widely observed in a number of countries - don't have much justification for calling Europe a separate continent.

  10. Anonymous Coward
    Anonymous Coward

    Logical impossibilities

    The main problems faced by the UPC are logical impossibilities relating to EU law.

    For example, CJEU opinion 1/09 (http://curia.europa.eu/juris/document/document.jsf?docid=80233&doclang=EN) indicates that any pan-European court, such as the UPC, that supplants the jurisdiction of national courts must be "situated ... within the judicial system of the European Union", for example by being a court common to (only) EU Member States.

    On the other hand, the only thesis that has been advanced in support of the UK's post-Brexit participation in the UPC relies upon the assumption that the UPC is an "international court".

    It is a logical impossibility for the UPC to be both an international court AND a court situated within the judicial system of the EU. Thus, the UK's participation is clearly precluded.

    Another example is the (strong) desire of the UK to ensure that CJEU rulings no longer apply to the UK post-Brexit. Once this ambition is achieved, then it is impossible to see how the UK could participate in a court that is required to make references to, and to follow the rulings of, the CJEU. This is because members of the UPC will be obliged to enforce the judgements of that court ... and to therefore ensure that their national laws can only ever be interpreted in accordance with all (future) CJEU rulings that could possibly have a bearing upon matters for which the UPC will have jurisdiction.

    Such barriers to the UK's post-Brexit participation in the UPC have been very evident for a number of years now. Despite this, there have been no sightings of any remotely plausible solutions to those conundrums. Whilst an optimist might (in view of the political will behind the UPC project) still believe in the possibility that "miracle" solutions to these problems will be found, the evidence strongly suggests that such solutions do not exist.

    In the light of the above, it seems that pressing ahead with the UPC in its current form is likely to result in one form of disaster or another, such as a "robust" CJEU ruling striking down the UPC (by finding the UPC Agreement to be inconsistent with EU law) ... or a "fudged" CJEU ruling that upholds the UPC Agreement but that undermines the unity and integrity of EU law. It is therefore reasonable to ask why, in view of such impending disasters, there is any political will remaining to implement the current UPC Agreement. I cannot think of any reasonable answer to this question ... and so can only hope that the judges in Karlsruhe will help to dig us all out of this hole by upholding at least one of the three substantive grounds of Mr Stjerna's constitutional complaint.

    1. APersonA

      Re: Logical impossibilities

      I had thought that the UPC came about as a result of the CJEU striking down the EPLA (European Patent Litigation Agreement), a previous attempt at creating a single judicial system and appeals court that would have been open for participation by any EPC-contracting state that wanted to opt in. The CJEU found this was illegal under EU law; the UPC was therefore a new attempt to arrive at a similar system from within the auspices of EU law, and was hence restricted only to participation by EU member states.

      Participation in the UPC therefore requires recognition of the primacy of the CJEU - which means continued UK participation, despite their ratification, would be incompatible with both the UK Government's repeated utterances of a desire to "escape" from the jurisdiction of the CJEU

      1. zoobab

        Re: Logical impossibilities

        It is called the AETR caselaw, which had been used in 2006 negotiations to kick out Switzerland out of the EPLA discussions.

        It is rumoured that the AETR caselaw will kick in after Brexit.

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