IP Minister Jo Johnson proposes  motion on
UPC (Immunities and Privileges) Order 2017
Meanwhile, in a room somewhere in Westminster, Kat friend Alex Robinson (Dehns) was observing the latest goings-ons on the Unified Patent Court with respect to the UK’s ratification process.  With the AmeriKat’s whiskers down in a stack of papers, Alex helpfully reported for readers on what happened at yesterday’s Delegated Legislation Committee:  

“The British political headlines this week may have been dominated by the so-called “Brexit bill”, the Irish border conundrum and the curious case of the 58 Brexit impact assessments that may or may not ever have existed (never mind hard or soft Brexit; the impact assessment row suggests that the Government may have discovered Quantum Brexit).  But to those of us with an interest in the UPC, the real political action this week took place not in Brussels or at the despatch box, but in the rather more rarefied surroundings of Committee Room 11 of the House of Commons, where, yesterday, the snappily-named Sixth Delegated Legislation Committee met to discuss the even more snappily-titled Unified Patent Court (Immunities and Privileges) Order 2017. [Do stay awake at the back of the class.] 

Delegated Legislation Committee (DLC) debates are normally pretty dull affairs – DLCs have no power to amend a Statutory Instrument put before them, and can only vote on a motion that the Committee has “considered” the SI. However, the UPC Immunities and Privileges Order has acquired disproportionate significance, as it is the final piece of the legislative jigsaw which will allow the British Government to ratify the UPC Agreement. And so on Wednesday afternoon a small but dedicated band of UPC-watchers, including this Kat-for-a-day, headed along to Westminster to watch our lawmakers in action. 

Jo Johnson MP, as the minister for IP, proposed the motion, relying on the by-now extremely well-worn refrains about the patent system being fragmented, costly and burdensome, implicitly suggesting that the UPC will solve all of this – a matter on which many have opinions… Mr Johnson did include one interesting statistic: about a quarter of all patents which are litigated in the UK are also litigated elsewhere in Europe between the same parties. If anybody has a source for this please let us know! [As we all know, it is rather a leap in logic to assume that all of those parties will want or need a single pan-European judgment, but we shan’t dwell on that here.]

More interesting to this observer were the comments made in reply by Opposition MPs. Jack Dromey MP noted the importance of Britain remaining a “nation of innovation” as it leaves the EU.  He recognised the importance of the patent system in this regard. He called the legislation an “eminently sensible move” and stated that “we wholeheartedly support it”.  That “we” is intriguing. Does this give us a clue to official Labour Party policy on the UPC? Or was he speaking only on behalf of those in attendance? Answers in the comments, please.

It was not all mutual congratulation though. Angela Eagle MP had some pertinent and uncomfortable questions for the Government about various of the elephants which were also crowded into the room besides MPs, clerks, Kats and other creatures. While calling the UPC a “wholly good thing”, Ms Eagle noted the irony of Britain assisting in bringing it into existence on the one hand while “fragmenting itself” from the EU on the other hand. In this respect she noted the fact that the UPC Agreement is not itself EU law, but that it is closely linked to the Unitary Patent Regulations.  She also alluded to expert opinions that the UK would need to take “further steps” to stay in the UPC after Brexit – presumably here referring to the Gordon/Pascoe opinion and others. Ms Eagle further noted the recent developments in Germany and asked whether these would be a help or a hindrance to “getting the timing right” [this observer assumes that she prefers the option of the UPCA entering into force prior to Brexit].  She queried how the UK could remain part of the UPC system without remaining subject to the CJEU’s oversight, and rather pointedly asked Mr Johnson whether his department was prepared for the task of negotiating new agreements regarding the UK’s post-Brexit relationship to the UPC, if it was indeed the Government’s intention to remain part of the UPC system.

Relevant though those points were, Ms Eagle unfortunately bundled them all into one rather rambling multi-question intervention which allowed Mr Johnson to respond in broad terms that didn’t shed much light on the Government’s future intentions. He stressed that, while still an EU member, the UK should and will carry out all necessary legislation allowing the Government to ratify the UPCA; he also stated an expectation that “we will need to negotiate with our European partners regarding the future relationship” but stopped short of saying whether or not the Government intended to seek any such relationship. [Only a cynic would suggest that the Government hasn’t thought about this yet.] 

Mr Dromey noted that his support for the legislation was on the basis that there would be an “enduring mechanism” after Brexit and said that British exclusion from the UPC would be a source of “immense concern”.  Mr Johnson’s words in reply were extremely carefully chosen – he simply noted that the Government wanted to put itself “in a position to enable the UPC to come into existence” and “continue to play a facilitating role in setting it up” but that the future relationship would be “subject to negotiation”. The CJEU issue was not mentioned at all. 

After another intervention from Ms Eagle on similar lines as before, the Chair (Adrian Bailey MP) cut the debate short, noting that the discussion was supposed to be confined to the substance of the SI, and put the motion to a vote. The motion was carried unanimously, Mr Dromey’s “immense concern” notwithstanding.

So, what are we to make of all this?

First, and in practical terms: the DLC’s consideration of the SI means that all that remains in the Commons is a formality. A motion will be put before the House on behalf of Mr Johnson’s older brother, the Foreign Secretary, “That the draft Unified Patent Court (Immunities and Privileges) Order 2017, which was laid before this House on 26 June, be approved”. Indeed, such a motion has already been listed in the House of Commons’ Order of Business, although no date has yet been assigned. According to this helpful briefing paper, no debate will take place (the debate having been delegated to the DLC) and so the House can only approve or reject the SI. The last time an SI was rejected by the House of Commons was in 1978 and so it seems that approval is essentially a foregone conclusion.

The House of Lords must also give its approval to the SI in a similar fashion. The corresponding Grand Committee discussion in the House of Lords has been scheduled for 6 December.

If both the Commons and the Lords give their approval swiftly, there now seems to be a realistic possibility that the UK will be in a position to ratify the UPC Agreement before the year is out, or early in 2018 if the Commons and Lords votes cannot be scheduled in the remaining time before the Christmas recess.

Second, there is the rather more Rumsfeldian question of the “known unknowns”, chief among which is what Mr Johnson meant by wording such as “we want to put ourselves in a position” to enable the UPC to come into force, or “continue to play a facilitating role” or “work to bring it into operation”. The Eagle-eyed [pun fully intended] will notice that he has stopped short of saying that we will actually ratify the Agreement. Coupled with his acknowledgement that the future relationship will be a “matter for negotiation” does this give us a hint that the Government might withhold formal ratification as a bargaining chip subject to discussion of the future relationship (not unlike its, erm, wildly successful approach to negotiations over the Brexit bill, Irish border and future trade agreements)? Or is this GuestKat engaging in the type of meticulous verbal analysis against which Catnic warned us? Assuming that the official transcript in Hansard confirms this report, it’s possible to parse Mr Johnson’s words either as fulsome support for ratification or as a rather more noncommittal position. Truly, it seems, actions will speak louder than words over the next few months.

Another set of “known unknowns” is the Labour Party’s policy on the UPC. Mr Dromey’s comments seem to hint at Labour support for the UPC, and, indeed, support for continued UK membership after March 2019. But was he speaking on behalf of the party, or merely expressing a personal view? Enthusiasm for the UPC does not seem to sit comfortably with the party’s apparent commitment to leaving the single market and customs union, or the somewhat ambivalent stance of the current party leadership towards business.

Overall, then – progress has indisputably been made towards UK ratification, but whether the UK will actually ratify the Agreement, and what (if anything) it might seek in post-Brexit arrangements, remain as unclear as before. Of course, if the Bundesverfassungsgericht fails to issue a final judgment before 2019 or 2020 in the German constitutional case, this could all turn out to be rather academic. It will be most interesting to see what – if anything – emerges from Karlsruhe after the deadline for third-party submissions elapses on 31 December.”

You can watch the proceedings here.  The transcript in Hansard should be available sometime today.

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