The European Court of Justice
The future of the UPC looks uncertain owing to legal challenges and Brexit.
The Unified Patent Convention, a system that would bring numerous European countries together under a single patent, looks to be in for a difficult year ahead, following a challenge from a German patent attorney who is seeking to prevent Germany becoming a member.
Ingve Björn Stjerna, an intellectual property law specialist, has taken out a legal challenge to halt Germany’s imminent ratification of the UPC. Hardwicke’s Mark Engelman, writing for Lexology, draws a comparison between Mr. Stjerna’s campaign, and that of the UK-based businesswoman Gina Miller: Earlier this year, Mrs. Miller successfully challenged the British Government in the High Court over their decision to trigger Article 50 (setting in motion the withdrawal from the EU) without Parliamentary legislation. According to Engelman, both Miller and Stjerna sought to stop their Government acting without the requisite authority to do so; the only difference being Miller’s was in relation to leaving a supranational body, Stjerna’s to joining one.
At the root of the proposed Unified Patent Convention is a single patent for all signatory countries. UPC courts will hear proceedings for infringement and validity separately, rather than simultaneously – an inviting prospect for patentees, who can sue for infringement without needing to worry about dealing with, or financing, claims of validity until later. Engelman claims that the foundation of Mr. Stjerna’s position against the UPC is that he believes it acts only in the interests of those of the relevant national intellectual property profession; that the Convention does not serve the interests of business, and by extension, the public, although as Engelman says, “the rationale for that position is not entirely clear.”
Engelman further argues that the UPC is no more anti-competitive than what might be termed its spiritual ancestor, the Madrid Agreements – the arrangement allowing pan-national registration of trademarks in one application, rather than lodging a fresh application in every individual country. Yet one potential hurdle for the UPC to surmount, and one of Stjerna’s objections, is that the signatories of the UPC are not identical to the member states of the European Union, and thus it potentially grants Non-EU-Member states rights unequal to those enjoyed by member states.
A main feature of the UPC is the power of the European Court of Justice to make preliminary rulings. But should a non-member state’s national court fail to implement UPC provisions, the ECJ would be powerless to actually fine or sanction that state as a result, offering such states (which is forecast to soon include the UK) an unfair advantage over those within the EU.
Regardless, Germany’s ratification of the UPC has now been suspended by the Federal Constitutional Court whilst the Court considers Stjerna’s case. With no final decision on the merits of his case in sight, it will be an anxious wait for supporters of the UPC, to see if it can overcome this latest challenge.