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German Bar Association says Nein to patent court block effort

Good news for UPC advocates, bad news for EPO staff

The effort to create a single patent court system for Europe has been given a boost with a response from the German Bar Association arguing that a complaint against the Unitary Patent Court (UPC) should be thrown out.

The association is one of more than a dozen organizations that have been asked by the German Constitutional Court to supply their views on whether it should hear a formal complaint about the UPC.

The association – the Deutscher Anwaltverein, or DAV - answers definitively: the complaint is inadmissible.

That decision is expected to be reflected in submissions from the range of other organizations asked to weigh in, opening the door for the UPC to be ratified by the German government within months.

That would still leave the issue of the UK's exit from the European Union: under the terms of the UPC, both the UK and Germany (as well as France, which has already signed) must ratify the agreement before it can take force. Brexit has complicated that situation, and no one seems able to reach agreement on what that means.

Somewhat oddly, the actual complaint to the German constitutional court is not publicly available so observers have been piecing together snippets of information to figure out on what grounds the complaint argues the UPC breaks German law.

To date, it appears that there are three main issues: that it was not properly voted on; that Brexit changes things; and that "reforms" at the European Patent Office (EPO) have undermined the independence of the system.

Two types of law

The response from the German Bar Association indicates that the complaint is built on the concept that European Union law has been violated through implementation of the UPC. But, it says, the entire European patent apparatus is not subject to EU law; instead it lives in the different realm of international law.

It cites a decision by the European Court of Justice (ECJ) that said European patents sit outside of European Union law, but that the existence of the EPC is compatible with European law. "The EPC therefore remains fully within the framework of the international law and does not come close to EU law," the opinion reads.

As odd as that may sound, it has been consistently held as the correct legal interpretation, not least when the Dutch Supreme Court decided that the European Patent Office (EPO) was not subject to local employment laws because it is an international organization after its management came under severe criticism for using techniques to spy on its employees that would be illegal under Dutch (and German) law.

There is additional bad news for those seeking reform of the EPO after years of abusive behavior by its management and in particular its outgoing president Benoit Battistelli.

The German Bar Association argues that despite "reforms" that have given EPO management increasing control over the appointment and reappointment of independent judges, those changes do not constitute a breaking of the European Patent Convention.

The response argues that the current system of a majority of the EPO's Administrative Council approving specific judges from a list provided by EPO management is adequate for ensuring independence. And it notes that EPO management is ultimately in charge of the process and that the Administrative Council is "not an equal creation organ."

Accountability? We've heard of it

That will be a bitter pill for many critics of the EPO who have been outraged in recent weeks that one of those independent judges – Patrick Corcoran – was not reappointed to the EPO's Boards of Appeal even after he successful won his case against EPO management.

There is much more in the bar association's response that is difficult to fully comprehend without a good understanding of German constitutional law. It also doesn't help that we are relying on a machine translation of the document from its original German (you can read the translation here, courtesy of European patent attorney Alex Robinson).

But the upshot is clear: the German Bar Association feels there is no case to answer. And suffice to say it is unlikely to be an outlier in this situation.

If the broad argument also holds that European patent law lives in international law and as such is not subject to European Union law, then it will also likely be the case that Brexit has less of an impact on the UPC than many suspected. There would be nothing stopping the UK government from agreeing to the UPC as its own entity outside of the EU – and indeed it looks as though the UK government is preparing to do precisely that.

The bad news is that there appears to be no larger constraint on the EPO's appalling behavior towards its employees. In fact, the decision may even embolden EPO management to continue its campaign of harassment against staff knowing that there is no organ that can hold it to account, or even punish it for its actions.

For advocates of the Unitary Patent Court, however, the document is a clear victory and may see the UPC introduced this year, where many feared it would be delayed to 2019 or 2020. ®

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