A lot has already been written about the referendum in the UK scheduled on June 23, 2016 regarding a possible break-up with the European Union – nicknamed “Brexit”. Many in the European patent profession have expressed concerns about the impact that a Brexit could have on the Unified Patent Court (UPC). One issue in particular is that Article 7(2) of the Agreement on a Unified Patent Court (A-UPC) specifies that “the central division shall have its seat in Paris, with sections in London and Munich”: should the UK no longer be part of the system, maintaining one third of the central division of the court in London would seem to be out of the question.
I am glad to report, thanks to a well-informed source at the European Commission, that a solution to this tricky problem has fortunately just been found. In fact, it seems that a special taskforce involving representatives from all participating states was secretly set up a few months ago in order to propose a protocol amending the A-UPC in case of a Brexit.
The initial draft, proposed by a Scottish member of the European Parliament (MEP), planned to simply move the London section of the central division to Edinburgh. However, it was rejected after the MEP was kindly reminded by his peers in the taskforce that Scotland was still part of the UK (in the absence of a Scoxit), so that the proposed move was in fact impractical.
Finally, after more than 2,000 hours of uninterrupted negotiations and 56 circulated drafts, it seems that a groundbreaking compromise has been reached, which effectively means that the UPC will be saved, irrespective of the outcome of the referendum.
Thus, the paramount aim of simplifying patent litigation in Europe without offending the sensitivity of any member state will not be jeopardized.
The proposed protocol (which will still need to be signed and ratified by member states) seeks to amend Article 7(2) as follows:
The central division shall have its seat in Paris, with sections in Munich, Luxembourg and The Hague. The section in Luxembourg shall have secondary offices in Monaco, Geneva, Jersey and Guernsey. The section in Munich shall have secondary offices at Erhardtstrasse, Bayerstrasse and Grasserstrasse. The section in The Hague shall have nine rotating offices which shall be allocated every three years to the nine cities of the Member States in which the highest amount of fish per inhabitant was consumed during the fourth month preceding the date of allocation.
A case brought before the central division shall be distributed to the office from the above list in which the last name of the presiding judge is alphabetically closest to the fifth word of the main claim of the European patent in suit. If this cannot be easily determined, the case shall be distributed to any office in Germany.
As a spokesperson for the taskforce, probably exhausted after so many days at the negotiating table, told my anonymous source:
Three sections for the legally qualified judges under the Agreement,
Seven secondary offices for the technically qualified judges in their halls of justice,
Nine rotating offices for defendants doomed to litigate,
One seat for the President on his or her throne,
One seat to rule them all, one seat to find them,
One seat to bring them all and to EU law bind them.
I don’t know what readers think, but this sounds like a rather ominous statement to me…