From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 31 March 2017

UK UPC ratification still on track despite Article 50 trigger

This afternoon the UK's IPO confirmed that this week's Article 50 trigger will not impact the UK's present UPC ratification plans.  The news from the UK IPO is as follows:
"There has been some speculation this week about the UK’s timetable for ratification of the Agreement. As reported in Managing IP on 30 March, we are fully on track to commence the provisional application period and ratify the UP Agreement according to the Preparatory Committee’s timetable (i.e. provisional application in May and court operational in December 2017). We expect the legislation on privileges and immunities to be ready to lay after Easter."
Of course, many will not be wishing to count their ratification chickens before they are hatched.

The update from the UK IPO also confirmed that the UPC Preparatory Committee's HR team is ready to proceed with the judicial recruitment process following the commencement of the provisional application period.  This update came during Wednesday's Preparatory Committee's Interim Team meeting held at the UPC Court of Appeal building in Luxembourg.  The Interim Team consists of 5 sub-groups in charge of finalizing practical arrangements for the UPC.

29 comments:

Observer said...

Who is taking whom for a ride?
If UK wants to kill the UPC, this is the best way to behave.
One thing is clear: the lobbying of some circles, not to say U.K. law firms shows that what reasonable people consider stupid and foolish, might nevertheless become true.
Which reasonable legal adviser can suggest to his client to go for the UP, when it is not sure what will be the fate of the UPC.
I am still waiting for somebody to explain in a clear and concise matter how UK can stay in the UP after Brexit, and how enforcement will take place in the U.K. or in the other states for a decision taken by a local court or the section of the central court in UK.
The UPC is nothing more than a Trojan Horse coming to put European industry under pressure. Remember the proportion of applications coming from EU member states at the EPO? At best a third! And how many SMEs among those?
It is time to stop the ongoing hypocrisy.

Anonymous said...

It was a bad idea from the start, irrespective of Brexit. Pushed for by the litigation community in complete ignorance of the realities of the industries they purport to represent. Further evidence, if it were ever needed, of the self-serving bubble of ignorance and incompetence in which such lawyers reside.

Anonymous said...

This is an April Fool's, surely.....?

MaxDrei said...

The UK is busy gathering cards to play in its negotiations with the 27. Hinting at weakened co-operation on security against terrorism is just one dirty example. Ratifying the UPC is just another card in the hand.

Anonymous said...

Would you mind letting the readers know the exact source of these "news"? Is the above based on an offical statement by the UK IPO and if so, where can this be found?

kungfh said...

The only interest group in Britain which has any interest in the UK acceding to the UP are law firms. British law firms which are just the post office of American and some Asian applicants will be marginalised if they will no be eligible to present before the UPC. Due to the high cost of litigation in the UK and by consequence the low number of court cases they have basically no real court experience and they wont get it before the UPC. To a very small extent Irish firms will take over, and German lawyers take the win. The best thing the British lawyers can hope for is no UPC at all or requalify as plumbers with all the Polish plumbers leaving the Island, this seems a more rewarding career prospect.

M.S. said...

MaxDrei,
you refer to the dirty example of using security as a negotiating card. The EU nationals living around Europe (i.e. non-UK nationals living in UK, and UK nationals living abroad) who do not have any security of their future because they are merely cards to bargain with may think your example should not be top of the list.

Secondly, security under Europol is a legitimate card as it is an EU-institution and hence needs to be dealt with in any 'new-deal'. Other security matters include the UK's commitment to NATO. This is not up for discussion in any case, although it is worth mentioning that the UK contribute more to European security than most European countries, both in cash terms and as a percentage of GDP (hence Trump's justified criticism).

Thirdly, the card that has been raised regarding Gibraltar is not even an EU issue, yet Europe has dared to play a territorial dispute card on behalf of one of its members. As someone who voted 'Remain' I find this an extraordinary move. Crassness of the highest magnitude. A clear sign that those in power are abusing that power in old-fashioned ways that Europe has had enough of. I'd never have thought that Merkel would be the German leader that resorted the nation to type, but I must accept again that I am proven wrong.

It is repeatedly stated by European leaders that "the British are different" and said words have been used this week repeatedly to criticise the UK. In reality, this must be seen as a complement.

Anonymous said...

It is rather amusing to believe the UK would consider the UPC a "card in the hand" and frankly ridiculous for anyone to believe the UPC will be given a moment's thought by any EU member state.

Dream on Herr Drei. Fantasyland must be a strange place.

MaxDrei said...

Several issues raised, in those last comments. One of them relevant to patents namely UPC as negotiating card.

I didn't write enough. the way I see it, the UK was well on the way to ratification before the BREXIT vote. SI's already in place (or whatever). Then came BREXIT and then the meeting of the EU Competitiveness Council, at which the UK is asked, are you going to sign or not. What can the UK do, if not sign. It is still an EU Member State till the end of the Art 50 two year interregnum, isn't it. So it did what good Europeans do, and signed. The "negotiating card" is the argument that, round here, we Brits are the ones who do things in an orderly fashion, by the book. That counts for something in negotiations, doesn't it?

Now to Gibraltar. Bilateral ES-GB? Of course. So why is anybody opportunistically raising it now? Ask Spain, I would suggest. And how to explain the reaction in Berlin? What else can Merkel realistically say?

Anonymous said...

@MaxDrei: doing things 'in an orderly fashion' would mean first discussing what is going to happen post-Brexit before starting up the UPC and UP.

And off-topic: Spain will share a border with this new neighbour of the EU. Of course they want to have a say in what kind of trade agreement will apply to that border.

Anonymous said...

"Now to Gibraltar. Bilateral ES-GB? Of course. So why is anybody opportunistically raising it now? Ask Spain, I would suggest. And how to explain the reaction in Berlin? What else can Merkel realistically say?"

Merkel can realistically say that Germany does not support the EU getting involved in extra-EU (inc/ extra EU-ex-UK) territorial affairs. However, Germany and Merkel have frequently stated and it appears to be a commonly held believe throughout Europe (exc. UK), that the existence of European Union prevents the outbreak of a new war, which obviously means Germany-led invasions. Merkel could come out and say that Germany promises to behave irrespective of the continued existence of the EU, as agreed at the end of the second world war (and first), but then she probably has a degree of integrity and doesn't want to be called out in the history books as going back on her word?

On the first point, again, the UPC is a non-issue on the political list of priorities. There was no urgency for the UK to sign and it would have been reasonable not to pending an idea on how things would work when the UK leaves. No point setting off on boat journey when you know the plug will be pulled when out in deep water.

MaxDrei said...

As to the land border between Gibraltar and Spain, recall that the people of Gibraltar have "spoken". 96% of them don't want to leave. Further, is Gibraltar even part of the UK? I'm not sure. It seems that it is and it isn't depending on what issue one is debating.

And if it's not, why does it have to leave the EU? To preserve its position as a tax haven, part of the global financial laundromat, a UK speciality and gift to the world?

Spain surely has a legitimate interest in establishing early whether its land border with Gibraltar is or is not part of the periphery of the EU.

Anonymous said...

Gibraltar is part of the UK. Surprised that needs stating. The border with Spain is an irrelevance, but nice try. Ireland (Republic thereof) has a border with the UK, a difficult issue, to say the least. Ireland has not been given a veto over a trade deal with Norther Ireland. Not yet anyway, but plenty of time for Merkel.

Shall I go though the other EU-member/non-EU borders?

I guess Europeans (true Europeans) are feeling proud of their leaders' anti-UK stance.

Glad to be out of the madhouse said...

"Anonymous said...Gibraltar is part of the UK. Surprised that needs stating."

Actually, as a self-governing British Overseas Territory, Gibraltar isn't, constitutionally speaking, part of the UK. And if you're an IP practitioner, you should know about this, since this means, among other things, that UK patents and trademarks aren't automatically valid and enforceable in Gibraltar, but need to be registered at Gibraltar's Companies' House to be extended there. Surprised that needs stating.

BTW, this raises an interesting question: will unitary patents, at least for the short while from the start of the UPC to Brexit, automatically cover Gibraltar? We know that they will cover the Isle of Man, but only because a specific Order was passed in order to reconcile the fact that UK patents are protected under Manx law with the Isle of Man's non-EU status. Gibraltar's situation, on the other hand, is the opposite: uniquely among British Overseas Territories, it's (for the time being) in the EU, but UK patents aren't protected under Gibraltar law.

Anonymous said...

Funny how when the UK voted to leave the EU, Gibraltar was part of the vote and will leave along with the UK. The UK Patents Act also has separate sections dealing with Scotland - did I miss the Yes vote for Scottish independence?

he comment stated "Further, is Gibraltar even part of the UK? I'm not sure. It seems that it is and it isn't depending on what issue one is debating."

Seeing as how the issue we are debating is the EU and sovereignty, for said purposes Gibraltar is part of the UK.

Regarding the UPC comment it is incorrect to state that Gibraltar is in the EU, because clearly it is not, but I am not one to split hairs, so I am prepared to accept that it is.

MaxDrei said...

Wow! When I typed my last Comment, little was I expecting those two answers. What a contrast in quality, eh? Thank you Madhouse, for a very illuminating comment. Thank you anonymous poster for reminding us how little we should rely on postings by people who choose to remain anonymous. No, I think we don't need to trouble you to run through for us all the "other" EU borders.

Anybody any idea why Gibraltar "uniquely amongst all the other BOT's" is for the time being "in" the EU. How did that happen then? Is Gibraltar expressly mentioned in the UK acquis? Or are there separate Instruments of Accession somewhere, for Gibraltar alone? Was there a formal signing ceremony when Gibraltar was handed the keys to the EU door.

Incidentally, do those of Gibraltar nationality hold UK passports, EU passports, no passports or what?

I wonder, can Gibraltar's EU membership perhaps survive even after departure of the UK from the EU? It could then be an ongoing "British" landing pad on the face of Battlestar Galactica, long after the UK mother ship has jetted off into the wide blue yonder.

Glad to be out of the madhouse said...

@M.S.:

"Thirdly, the card that has been raised regarding Gibraltar is not even an EU issue, yet Europe has dared to play a territorial dispute card on behalf of one of its members"

What territorial dispute card? The only ones who have raised any territorial dispute card are a handful of delusional British politicians and the usual overventilating tabloids. What the EU Council has stated in its negotiating guidelines is the following:

"After the United Kingdom leaves the Union, no agreement between the EU and the UK may apply to the territory of Gibraltar without the agreement between the kingdom of Spain and the UK."

So there's on one hand stating the bleedin' obvious: as a British Overseas Territory, Gibraltar is not, constitutionally, part of the UK, and most UK law (notably tax law or indeed IP law) doesn't apply there. Consequently, a post-Brexit UK/EU agreement will not necessarily extend to Gibraltar, or any other BOT for that matter. Indeed, already now, Gibraltar is the only BOT in the EU, thanks to an ad hoc provision in the UK's EEC accession treaty, and it's nevertheless outside the EU's customs union (or indeed the EPC and even the Paris Convention).

Then there's acknowledging that a remaining EU member state, namely Spain, has a special interest in any Gibraltar-related issue in a post-Brexit UK/EU agreement, if only because of its neighbourhood, and may well capsize any agreement that doesn't take this into account (because it'll have a veto power over it, just like any member state or indeed individual Belgian regions). EU negotiators thus beware.

The EU Council has merely put those two clear truths in writing, and this has led to one of the greatest British over-reactions ever since the War of Jenkins' Ear, with much immoderate talk of invasions and naval task forces, although, to be fair, at least the PM has managed to keep a cool head. Your stiff upper lips are sorely missing, old chaps.

Anonymous said...

Sorry to disagree with the clique, but joining a gang does not make your joint position correct.


"Then there's acknowledging that a remaining EU member state, namely Spain, has a special interest in any Gibraltar-related issue in a post-Brexit UK/EU agreement, if only because of its neighbourhood,.. "

The issue is a territorial dispute.

When the UK leaves the EU, and takes it's strangely-defined territories with it, the UK will also be outside of the customs union etc. The things is, chaps, we British have a thing about protecting our territory and the people of Gibraltar are 100% British in respect of EU affairs. I'm surprised that this point needs stating, but please go scrolling through the British constitution, if you can find it, to argue otherwise.

Spain and the EU are perfectly within their moral rights to make whatever demands they see fit. However, Spain has made a mistake that fellow EU-members (non-UK, non-British non-IOM, non-special overseas outpost of the Prince of wales etc) will be unhappy about. The people of Catalonia may now decide to leave the EU as a separate nation, too.

British overreaction? Every reaction the British make that the EU members disagree with is an overreaction. At least there will be no dispute over who gets the CD collection - the EU are welcome to keep the Eurovision Song Contest, something they are understandably proud of as it keeps them from starting world wars, and is a great example of how European politics works.

There was a spelling mistake in an earlier post so maybe you can criticise the non-gang members for that. Anything to avoid dealing with the issues.

Glad to be out of the madhouse said...

Anonymous@23:35

I suggest that, before commenting again, you read up on Gibraltar's admittedly quite peculiar legal status.

Gibraltar is indeed (until Brexit) in the EU, under Art. 355(3) TFEU:

"The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible."

The only such "European territory for whose external relations a Member State (until 2019) is responsible" is...Gibraltar (the UK Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus being explicitly excluded by Art. 355(5)(b) TFEU).

This is indeed why Gibraltar was involved in the Brexit referendum (and, incidentally, voted 96% to remain), and also why it will necessarily leave with the UK.

The UK Patents Act may have separate sections dealing with Scotland, to take into account the specificities of the Scots legal system, but my whole point is that the UK Patents Act (like most laws passed by Westminster) isn't at all applicable to Gibraltar, whose own Parliament is competent for all domestic matters, including IP law.

"Seeing as how the issue we are debating is the EU and sovereignty, for said purposes Gibraltar is part of the UK."

This is supposed to be a law blog, and good legal professionals understand the importance of using the proper legal language. Gibraltar is under British sovereignty, but it isn't part of the UK, and any patent attorney who'd lead his client to believe that Gibraltar is part of the UK and his UK patents and trademarks thus valid and enforceable on the territory of Gibraltar would be exposing himself to allegations of malpractice.



Glad to be out of the madhouse said...

Anonymous@10:27:

The issue is NOT the territorial dispute. Not now, not today.

We've repeteadly been told that "Brexit is Brexit". The UK is thus leaving the EU. When it leaves the EU, the ties of Gibraltar to the EU under Art. 355(3) TFEU will be severed. And Gibraltar will not necessarily be covered by any eventual post-Brexit agreement between the UK and the EU regarding e.g. customs, financial services, the environment, taxes or indeed IP, because Gibraltar is self-governing and thus has its own policies and regulations regarding customs, financial services, the environment, tax, IP, etc.

In fact, it could even be in the common interest of the UK, Spain and Gibraltar to have a separate post-Brexit deal for Gibraltar, rather than a one-size-fits-all deal: the UK government has made it abundantly clear that it wants to end the freedom of movement of people between the UK and the EU, but both the Gibraltar government and the Spanish government have spoken of the need to preserve the rights of the thousands of Spanish workers commuting daily to work in Gibraltar.

"the people of Gibraltar are 100% British in respect of EU affairs"

Actually, the issue of citizenship is yet another one, distinct from that of the territory. Citizens of Gibraltar are British Overseas Territories citizens with the right to register as British citizens.

Anonymous said...

Sorry to disappoint Mr Madhouse, but the legal position of the citizens of Gibraltar re EU is as stated.

There is also a special relationship between the UK and Ireland regarding the movement of people etc, and there is no veto provided by the EU. Why not? Discrimination against Ireland? Scotland also has its own parliament - we just happen to have a complicated system of government.

If you don't understand the dispute between Spain and the UK as being territorial you are quite frankly deluded.

References to the UK Patents Act are an irrelevance in this issue. Basically, the only argument the clique have to counter the criticism of Spain and the EU for being crass in raising the territorial dispute as part of Brexit negotiations, is the construction of language regarding the exact sovereign/constitutional relationship between Gibraltar an whatever is defined as the UK. Said definition varying in accordance with the relevant issues.

The commentator even said the applicability of the UPC to Gibraltar was unclear. Why should tis be so when everyone is so adamant they understand the constitutional issues? Of course, our constitution is clear as crystal, so surprising our Supreme Court needed to sit en masse to asses a recent issue - Brexit!

The anti-anonymous card employed by the Kat-Clique is tiresome. Readers have no idea who MaxDrei, pudding-eater and madnuts are. Hardly famous You-Tubers.

M.S.

Glad to be out of the madhouse said...

Dear M.S.,

"There is also a special relationship between the UK and Ireland regarding the movement of people etc, and there is no veto provided by the EU. Why not? Discrimination against Ireland? Scotland also has its own parliament - we just happen to have a complicated system of government."

Northern Ireland and Scotland are, for the time being, part of the United Kingdom of Great Britain and Northern Ireland, whereas Gibraltar is a British Overseas Territory, under the sovereignity and jurisdiction, but not part of, said United Kingdom of Great Britain and Northern Ireland. The provisions of treaties subscribed to by the United Kingdom apply across the United Kingdom, but not necessarily in the BOTs: for instance, the EPC does not extend to Gibraltar. The people of Scotland and Northern Ireland are represented in the House of Commons, whereas the people of Gibraltar or any other BOT aren't. Yes, your constitutional system is indeed complicated, so I'd appreciate if you made a slight effort trying to understand it, rather than having a Johnny Foreigner like me explain the crucial differences between UK and BOTs to you. Repeatedly.

Kant said...

Strangely, I always wondered how Gibraltar would fit into the UPC system, with on the one hand the EU considering it to be part of the UK but from a UK perspective it was not.
Anyway, that seems as though it will not now be a relevant issue.

On the Brexit front, I viewed the statement relating to Gibraltar as being out of place entirely. Pre-Brexit, all states have a veto and after Brexit, the remaining EU states could agree among themselves whatever they wanted, it being nothing to do with the UK. I see the inclusion as a comfort blanket for Spain who presumably were concerned that any deal could be imposed on them through the qualified majority system.

Anonymous said...

Kant, it is a separate veto purely for the benefit of Spain to allow them to oppress Gibraltar in order to support their sovereignty-claim agenda. On many occasions the EU has stood idly by and watched Spain breach EU law by its actions against Gibraltar and now it has come out of the closet to support them openly.

The mis-placed strategy was launched expecting Britain to abandon the Gibraltarians (British by right and/or British under EU laws) so that they would come begging Spain to take them under their wing and bring them back into the protection of the Motherland (the German-run EU).

It is correct that the Brexit deal (if one is made) requires all member-states approval, but the deal the EU members (including Spain) would agree for the EU dealings with the UK could not be scuppered as a whole by Spain's obsession with Gibraltar.

If you want to understand the very may nuance of the UK/British territories, oddly enough you should speak to the xenophobe of the madhouse who is the world expert. Shame that as a Johnny Foreigner he isn't allowed to be a judge in our Supreme Court. Unless he, being the expert (as he repeatedly states), knows otherwise.

M.S.

MaxDrei said...

Good that our troubled (about Spain's "obsession" with Gibraltar) anonymous poster now has a name, "MS".

What better than his last contribution though, to evidence that old saw that "It takes one to know one".

Something like: I know you and I say that what you say doesn't count 'cos you're an idle Germany-obsessed xenophobe and an arrogant self-proclaimed expert.

Anonymous said...

M.S. put his/her name to one of the earliest comments on this thread, and many people I know no longer follow this blog, because of the attitudes of the 'old boys' to those who have opinions that differ. It is all too often the case that ad-hominem attacks are made by this group.

The "no, that's you that is" response being the puerile depths sunk to keep the blog clear of interlopers.

Anon

Go-Rilla said...

@Anon, 9:38:

As I see it, the reason why many people turn away from the IPkat is not so much related to "old boys", but rather to the blog's apparent transformation from an academic, open-minded forum valuing free speech into a marketing tool for the interests of those in charge after Jeremy's departure and for their firms, apparently aiming at influencing public opinion on certain topics.

This has been re-emphasized recently by the blog's sudden refusal to cover the situation at the EPO any longer, but it is obvious for quite some now also in relation to the UPC topic, on which comments expressing a certain, probably undesired opinion seem to go missing on an unusually regular basis.

Meldrew said...

The two orders on the Protocol on Privileges and Immunities are yet to be presented to the Westminster and Scottish Parliaments.

Although in theory these orders do not have to be passed for the UK to ratify the UPC Agreement, the lack of progress implies an increasingly tight timetable to those not accustomed to the "flexible" approach to constitutional matters "enjoyed" in the UK.

Despite public protestation that the ratification will take place, continued delay is not good PR for the UK and fingers need to be extracted. At present the UK gives every appearance of having their thumb up their bum and their brain in neutral.

Let us hope that after the Easter recess our legislators will be reinvigorated into something resembling action.

Meldrew said...

Telegram from the Brexit front --

Thumb has been extracted.
TM PM is sniffing it.
Situation SNAFU, perhaps TARFU, or even FUBAR.
Confusion abounds.
War is peace.
Freedom is slavery.
Ignorance is strength.
Metropolitan elite saboteurs are desperate.
HELP

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