Comments on: Stop Press: Final Version Of Agreement On a Unified Patent Court Published Today http://blog.ksnh.eu/en/2013/01/14/stop-press-final-version-of-agreement-on-a-unified-patent-court-published-today/ Intellectual Property Observations Thu, 14 Nov 2013 21:31:32 +0000 hourly 1 http://wordpress.org/?v=3.4.1 By: RC http://blog.ksnh.eu/en/2013/01/14/stop-press-final-version-of-agreement-on-a-unified-patent-court-published-today/#comment-2634 RC Tue, 15 Jan 2013 10:19:26 +0000 http://blog.ksnh.eu/en/?p=3894#comment-2634 After browsing through the agreement, there's one little detail that suddenly springs to my eyes: the agreement includes specific requirements as to the nationality of the judges. Although Art. 45(4) TFEU includes an exemption of "public service" from the principle of freedom of movement of workers, this exemption has always been interpreted very narrowly by the CJEU. Could it be that those requirements are in breach of EU law? After browsing through the agreement, there’s one little detail that suddenly springs to my eyes: the agreement includes specific requirements as to the nationality of the judges. Although Art. 45(4) TFEU includes an exemption of “public service” from the principle of freedom of movement of workers, this exemption has always been interpreted very narrowly by the CJEU. Could it be that those requirements are in breach of EU law?

]]> By: Gibus http://blog.ksnh.eu/en/2013/01/14/stop-press-final-version-of-agreement-on-a-unified-patent-court-published-today/#comment-2624 Gibus Mon, 14 Jan 2013 20:27:14 +0000 http://blog.ksnh.eu/en/?p=3894#comment-2624 There is another important change in this document, compared to previous version 16222/12 (sate November 14; 2012): Article 89, dealing with " Entry into force", paragraph 1. It now reads (emphasis added): <blockquote>(1) This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the <strong>amendments to Regulation (EU) No 1215/2012</strong> concerning its relationship with this Agreement, whichever is the latest.</blockquote> Whereas previous revision was subjecting entry into force of UPC to the entry into force of the amendment to <strong>Regulation (EC) 44/2001</strong>. This is important because it is the so-called Brussel I regulation about "on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters". As already written <a href="http://blog.ksnh.eu/en/2011/12/12/one-of-the-lesser-problems-of-eu-unitary-patent-project-relation-to-brussels-i/" rel="nofollow">on this blog</a>, the Commission has published some note showing that UPC was in conflict with teh Brussels I regulation, and that the latter needs some amendment to take into account UPC. The Brussels I regulation (formerly EC 44/2001) has been recasted very recently, and <a href="http://ur1.ca/cgxph" rel="nofollow">has been published</a> in EU Official Journal on December 20th, 2012, L 351/1. But nothing about UPC was taken on board in this recast. So the UPC cannot entered into force before another amendment of Brussels I is voted by the European Parliament and the Council. Whosays that first unitary patents should be granted in early 2014? Another point is that mandatory amendments to Brussels I regulation demonstrates that the UPC indeed "affect common rules or alter their scope". It is to be noted that Art. 3.2 TFEU <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008e003:en:HTML" rel="nofollow">states</a> that <em>“The Union shall also have exclusive competence for the conclusion of an international agreement […] in so far as its conclusion may affect common rules or alter their scope.”</em> In Case C‑370/12 of November 27th, 2012, about the ESM Treaty, the CJEU <a href="http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&docid=130381#point101" rel="nofollow">has interpreted</a> this article like this: <em>“It follows also from that provision that Member States are prohibited from concluding an agreement between themselves which might affect common rules or alter their scope.”</em> Isn't it obvious from this reasoning that the UPC, falling into the realm of EU exclusive competences, cannot be ratified by Member States? There is another important change in this document, compared to previous version 16222/12 (sate November 14; 2012): Article 89, dealing with ” Entry into force”, paragraph 1. It now reads (emphasis added):

(1) This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement, whichever is the latest.

Whereas previous revision was subjecting entry into force of UPC to the entry into force of the amendment to Regulation (EC) 44/2001.

This is important because it is the so-called Brussel I regulation about “on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”. As already written on this blog, the Commission has published some note showing that UPC was in conflict with teh Brussels I regulation, and that the latter needs some amendment to take into account UPC. The Brussels I regulation (formerly EC 44/2001) has been recasted very recently, and has been published in EU Official Journal on December 20th, 2012, L 351/1. But nothing about UPC was taken on board in this recast.

So the UPC cannot entered into force before another amendment of Brussels I is voted by the European Parliament and the Council. Whosays that first unitary patents should be granted in early 2014?

Another point is that mandatory amendments to Brussels I regulation demonstrates that the UPC indeed “affect common rules or alter their scope”. It is to be noted that Art. 3.2 TFEU states that “The Union shall also have exclusive competence for the conclusion of an international agreement […] in so far as its conclusion may affect common rules or alter their scope.” In Case C‑370/12 of November 27th, 2012, about the ESM Treaty, the CJEU has interpreted this article like this: “It follows also from that provision that Member States are prohibited from concluding an agreement between themselves which might affect common rules or alter their scope.”

Isn’t it obvious from this reasoning that the UPC, falling into the realm of EU exclusive competences, cannot be ratified by Member States?

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