The Gordon/Pascoe Opinion and the UPCA’s incompatibility with Union law,

Article on the Opinion “Re the Effect Of ‘Brexit’ on the Unitary Patent Regulation and the Unified Patent Court Agreement” and its implications for the UPCA (12/01/2017)

Allegedly for an independent assessment of “Brexit” vote implications for a potential ratification of the Agreement on a Unified Patent Court (“UPCA”) by the UK, three associations interested in this ratification commissioned the barristers Gordon and Pascoe to prepare a legal opinion on several related questions. The Opinion, which widely appears to develop legally far-fetched results in support of desired results, assumes almost self-evidently that the Unified Patent Court is not a court common to the Contracting Member States of the UPCA. Since the political approach for ensuring the UPCA’s compatibility with Union law after Opinion 1/09 was always based on the opposite understanding, it supports the voices arguing that the Agreement violates Union law and demanding it to be submitted to CJEU scrutiny as to create legal certainty for the users. Such scrutiny could be initiated in the German ratification proceedings.

  • Download English version (Article of 12/01/2017)
  • Download German version (Article of 12/01/2017)



Resources:

  • Link to the report of the House of Commons European Scrutiny Committee, “The Unified Patent Court: help or hindrance?”, published on 03/05/2012 (PDF)
  • Link to the communication “Firm Leads on Obtaining Legal Opinion on Post-Brexit Unitary Patent Court Membership for the UK” of 26/09/2016 at www.simmons-simmons.com
  • Legal Opinion by Richard Gordon QC and Tom Pascoe “Re the Effect Of ‘Brexit’ on the Unitary Patent Regulation and the Unified Patent Court Agreement” of 12/09/2016, accessible at e. g. www.eip.com / www.simmons-simmons.com / www. bristowsupc.com / www.cipa.org.uk
  • Link to the Commission Legal Service “Note to Ms. Margot Fröhlinger – Possible solution for the European and EU Patent Court (EEUPC) replying to the concerns raised by the Court of Justice of the EU (CJEU) in its Opinion 1/09” of 18/04/2011 (PDF)
  • Link to the article by Prof. Winfried Tilmann “More Hope for the European Patent Court” of 12/04/2011 (PDF)
  • Link to the article by Prof. Winfried Tilmann “EUCJ-Opinion 01/09 – Analysis and Consequences” of 05/04/2011 (PDF)
  • Link to CJEU opinion 1/09 of 08/03/2011 at curia.europa.eu
  • Link to CJEU opinion 2/13 of 18/12/2014 at curia.europa.eu
  • Link to CJEU judgment C-583/11 P of 03/10/2013 at curia.europa.eu
  • Link to the article by Prof. Thomas Jaeger “All Back to Square One?” (Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 12-01, = IIC 2012, 286) at www.ssrn.com (PDF)
  • Link to the communication “Legal opinion on the UK’s participation in the UPC after Brexit” of 19/09/2016 at www.cipa.org.uk
  • Link to the article by Prof. Thomas Jaeger “Reset and Go: The Unitary Patent System Post-Brexit” at www.ssrn.com (PDF)
  • Link to the press statement of the UK government “UK signals green light to Unified Patent Court Agreement” of 28/11/2016 at www.gov.uk
  • Link to the communication “The IP Federation responds to the announcement that the UK will ratify the UPCA” of 02/12/2016 at www.ipfederation.com
  • Link to the communication “Statement by the Board of EPLAW – An important step towards the establishment of the Unified Patent Court” of 30/11/2016 at www.eplaw.org
  • Link to the judgment of the German Constitutional Court in case 2 BvR 2728/13 et al („OMT II“) of 21/06/2016 (German)
  • Link to the reference decision of the German Constitutional Court in case 2 BvR 2728/13 et al of 14/01/2014
  • Link to CJEU judgment C-62/14 of 16/06/2015 at curia.europa.eu