European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting

Last time the AmeriKat wrote about the
Competitiveness Council and the UPC
she was a mere kitten

It was November 2011.  The AmeriKat was spending her post-trial downtime reporting on the pending unitary patent proposals and the frenetic activity at the Competitiveness Council (see posts here).  Five years later, the UPC looked like it was ready to happen. Then Brexit.  And now, with a sense of déjà vu, the Competitiveness Council is back.  Tomorrow at around 2:30PM CET, the Competitiveness Council will be discussing, as AOB, the unitary patent and UPC (and also the review of the SPC system - for those who are less in love with the UPC).  It looks to be a public session so should be webcast here, with a press conference to follow here.  The background brief published yesterday states that:

"The Council will take note of a report on the progress made towards setting up the unified patent system and the situation concerning ratification of the Unified Patent Court agreement." 

The report from the Presidency to the Council dated 19 September 2016 provides a succinct summary on the state of play of the unitary patent and UPC.  The key section can be found in the Annex to the report which was prepared by the Chairs of the Select Committee of the Administrative council of the EPO and of the UPC Preparatory Committee.  The Annex states:

"According to the official timetable of the Committee the Court could be operational in early 2017. This was based on the assumption that the required ratifications where received during the fall of 2016.  

The outcome of the UK referendum has had consequences on the UK ratification process. The time-plan, therefore may have to be revisited.  

It is highly desirable to keep any delay of the entry into force of the system to a minimum in order to provide the business community with the clarity and the swift entry into operation of the new patent system they require."  

In advance of the tomorrow's meeting, numerous organizations have written to the Council as follows:

• Letter from Business Europe - click here
• Letter from UJUB - click here
• Letter sent by Michel Guilbaud (DG MEDEF) to Philippe Léglise-Costa, Secretary General of SGAE  - click here
• Letter by several companies (including Air Liquide, Boehringer Ingelheim, Bayer, Audi, Bosch, SAP and VW) to Mr Kris Peeters (Deputy Prime Minister, Belgium) - click here  

A theme that emerges in the letters is that (i) politicians need to find a way to get the system up and running and, with respect of some of the communications, (ii) politicians need to find a way in which to retain the UK in the system "that remains sustainable even after the Brexit" (to quote BusinessEurope).

The letter to Deputy Prime Minister Peeters states:

"In the wake of the political unrest seen in Europe in the summer, we find it timely to give a clear message to responsible politicians that we, the signing companies and industry associations, welcome the new patent system and urge that it should enter into force as planned, without delay. 

The attractiveness of the system would increase with a long-term participation of the United Kingdom. Therefore we also urge that solutions for such inclusiveness are considered."

The letter from MEDEF states:

"Pour les entreprises, l'attractivité du système serait accrue si la participation du Royaume-Uni pouvait être assurée sur le long terme et ce point devrait faire partie des solutions recherchées."

BusinessEurope's letter continues:

"Member States should make all possible efforts to bring the Unitary Patent package into life in 2017 as planned and to immediately start working on any necessary changes or additions to the legislative framework."

The German Bar Association's recent position paper took a harder line stating that "a quick decision of the UK is needed" on whether it will ratify the UPC Agreement with the view that if there is no quick ratification, then "an alternative solution should be found to allow the court system to start its work as planned".

The IPKat recently wrote on the legal opinion from Richard Gordon QC and Tom Pascoe of Brick Court on the legal feasibility of the UK's post-Brexit UPC participation (see here).  Legal feasibility is one hurdle, but the higher one in this landscape is politics.  Will the political hurdle of the UK's participation in the UPC post-Brexit be lowered in light of these comments? In a political environment where Prime Minister May is applauded for her "under the radar" approach, it seems unlikely to Merpel that any noise, no matter how positive, from European industry will make the UPC politically palatable to the current UK regime, at least publicly.

Against this background, the AmeriKat's words in a May 2012 post on the timing of the UPC seem oddly fitting now:  

"The AmeriKat cannot say whether the hands on the unitary patent clock that are ticking away as she types are counting down to an expected implementation of the patent proposals that have preoccupied the patent community for the past year [over 40 years] or to yet another legislative death when the proposals for the Utopian ideal of a unified European patent system fail to bring fruit."

The countdown has seemingly begun again, but the stakes seem to be even higher.   The IPKat will be back tomorrow to report on the Competitiveness Council's session tomorrow and future debates on this topic.