Unified Patent Court refuses to die - Try Growing Garlic

"The Vampire" Philip Burne-Jones 

Jane Lambert
"Will nothing kill off the Unified Patent Court?" some might ask.  One would have thought our government's volte-face on British participation in the Unified Patent Court agreement would have been pretty lethal (see Jane Lambert Volte-Face on the UPC Agreement 29 Feb 2020). If that was not enough to kill it off the German Constitutional Court's decision in 2 BvR 739/17 (Re the UPC Agreement) was like a stake through the heart.

And yet the UPC refuses to die.  On the day after the Constitutional Court had delivered its judgment, the Preparatory Committee commented:

"Despite the fact that the judgement will result in further delay the preparatory work will continue, while the judgement and the way forward is further analysed."

Not even the COVID-19 pandemic will daunt them:  "work will move forward using all available resources to keep the momentum."

As I said in my case note on the decision, German Constitutional Court's Decision in Re Unified Patent Court Agreement 29 March 2020, it was not an overwhelming victory. The judges split 5 to 3  The challenge to German ratification succeeded on the narrow point of the of lack of a quorum of MPs in the lower house of the federal parliament.  I wrote:

"If the problem was the lack of a two-thirds majority there is nothing to prevent the German Government from introducing another ratification bill and making sure that there are enough parliamentarians in each of the houses of Parliament to vote the measure through."

Something like that may happen.  The German Justice Minister promised to "carefully evaluate the decision of the Federal Constitutional Court and examine possibilities to remedy the identified lack of form still in the current legislative period" (see the Ministry's press release of 26 March 2020 "Europäische Patentreform soll fortgesetzt werden" ("European Patent Reform will carry on")   Welcoming the German government's statement, the EPO President blogged: "Now is the time to make the UPP (sic) a reality." On its Unitary Patent page, there appears the optimistic statement: "The start of the new system is currently expected for the end of 2020."

Optimistic perhaps but not entirely fanciful.  The transition period will not have expired by then and notice is required to resile from a treaty.  If the Court does take off I shall seek call to the Irish Bar so that I can continue to advise my British clients on the unitary patent and represent them in the new tribunal.  My chambers are already well placed because the distinguished Irish silk James Bridgeman SC is a member.  We shall make a winning team, for sure.  Especially as Anglesey where I already spend a lot of time is just across the water from the Land of Saints and Scholars.

So what can be done to stop this vampire, this zombie, this great undead? I hear garlic is very useful. There is some in my back garden but the Brexiteers and other Europhobes can't have any. I need it all for my cooking.

Anyone wanting to discuss this article or the UPC generally should message me through my contact form   Should anybody want a chat I shall call back by phone or VoIP.