Oddfellow December 2019

J.A. McStea, Teemacs GmbH

I’m still waiting for Brexit…

Bubendorf, 6 December 2019

Every time I propose to visit my mother in Belfast, I expect that this Brexit thing will finally have arrived and there’ll be some sort of border control, instead of the lonely notice between Dundalk and Newry that says that the speeds are now in miles per hour. It still hasn’t happened. Perhaps next time I go there (planned for her 96th birthday next April).

But, of course, there is an election coming up in the disUK in December. I always remember Australians wondering against whom they were going to vote this time. Never was this more true than of the present UK situation, where we have quite possibly the worst party leader pairing in UK history, an upper-class haystack with a mouth full of silver spoons who opens said mouth apparently only to change feet and tell whoppers (usually simultaneously), and what appears to be an unregenerate, old-style Marxist. The UK IP profession has been trying to decipher the parties’ positions on intellectual property matters (the latest CIPA Journal is largely devoted to the subject), but they’re having no joy, as the parties don’t appear to have one, and all we hear is Brexit, Brexit, Brexit.

I therefore wonder whether British membership of the Unified Patent Court could sneak in under the radar, while pollies are carrying on about other things. In an interview sometime back, a senior officer of the UKIPO was asked about the UPC and the fact that the final court of appeal for the UPC will be the CJEU. “I hope the Daily Express isn’t here!”  he cracked. However, the rabidly pro-Brexit Daily Express did hear about it and screamed blue murder for a little while about the iniquities of funny foreigners and their funny courts, until distracted by some other scandal.

Of course, there remains the question as to whether the UK actually can be part of the UPC, should it ever come into being.  A recent report from a think tank in the Directorate General for Internal Policies of the Union, entitled “EU Patent and Brexit” provides some food for thought. It’s here, should you want to read it:


but the general gist is that, while UK participation post-Brexit is not out of the question (“it seems not per se legally impossible for the UK to stay within the UPCA, even when not an EU member state”), the situation is not at all clear and major revisions to the various agreements would need to be made to accommodate this new, unforeseen reality. After all, the Unitary Patent and the UPC were conceived as EU instruments for the benefit of the internal market, and the UK is about to put itself outside this internal market. And the British were very big on “taking back control” and no longer being subject to the wiles of nasty foreign courts. The UK Supreme Court, said the Government, would be the final instance – but the final instance for the UPC is the CJEU and the UK would have to accept the primacy of EU law if it participated in the UPC.

Of course there have been other miscellaneous opinions. A Counsel opinion for CIPA said that it was possible, and a few months ago we had the conflicting papers of the Max Planck Institute and “Atticus Finch”. But, as Yogi Berra said, it ain’t over till it’s over.

There was recently a “leaked” document that was purported to be a prospective trade agreement between post-Brexit UK and the USA.


The big worry about such a deal is that the UK will bend over backwards to get a deal, including reducing food standards to allow in US produce that fails to meet EU requirements and, worst of all, let the US health insurance industry into the NHS and influence things such as drug prices (because of its sheer size, the NHS can get especially good drug prices, and US companies would prefer more market-led, i.e. profitable, prices). Mainstream reporting on this document was decidedly odd, including a BBC reference to the US wanting to “extend” UK patents.

The document is actually a dossier produced by the UK-US Trade and Investment Working Group in which various positions are set forth, but some interesting items have emerged. The most interesting and significant, and what that “extension” probably is, is a proposed change in UK patent law to allow a one-year grace period, as per the USA. The adoption of such a measure would place the UK in violation of the EPC, and that would be the end of the UK as an EPC Contracting State. This would be devastating for the UK profession, which has spent much time and effort trumpeting its EP credentials and that these would be unaffected by Brexit. Imagine all those UK patent attorneys suddenly no longer being European patent attorneys and unable to represent clients before the EPO (remember, authorised representatives have to be nationals of Contracting States). I can’t imagine the UK Government committing such a monumental act of self-harm. I mean, they haven’t done such a thing before – have they????  On the other hand, the USA was very much in favour of the UK being part of the UPC, which sounds like an exercise in having your cake and eating it.

Still, on the Brexit front, people have been saying that the German Constitutional Court has been dragging its feet on the decision as to whether Germany’s ratification would be unconstitutional until the Brexit situation is somewhat clearer. This has annoyed Court President Peter Huber, who, in an interview, described this in very polite German as bull****.  He said that there had been other important decisions to make, and that Ingver Stjerna’s constitutional objection was moving along, and that the decision would probably be taken in the first quarter of 2020, whether or not Brexit happens. The Constitutional Court would not be rushed, said Judge Huber.

Coming back from Ireland and my most recent visit to Mother, I met the Missus in Picardy. She arrived by train, more precisely by TGV (high-speed train). These things have dedicated lines (no local trains), so they come down the line like bullets. They are also beautifully appointed inside, and pretty much on time – the timetable said it would arrive at 18.34, at 18.34 precisely, the thing pulled to a stop at station TGV Haute-Picardie (in the middle of absolutely nowhere). I don’t think that travelling by train in Switzerland will ever be the same for Sue.

Sue lost great-uncles in the First World War, and she was keen to revisit the graves, or, more accurately, grave – one has no known grave and is on the wall of the Australian National Memorial at Villers-Bretonneux, just outside Amiens.  This is one of the more imposing WW1 monuments and its wall bears the name of nearly 11,000 Diggers with no known grave. En route to Ireland along the appropriately-named Autoroute des Anglais (it leads to the Channel ports and the Tunnel), I saw a sign that I’d never seen before – “Centre Sir John Monash”. It turns out that this has been built behind the Australian National Memorial, half-buried in the ground and with a turf roof. This has a lot of exhibits, plus audiovisual displays, of Australia and Australians at war. Not to be missed, if you’re in the area. Sue thought that Melbourne’s Monash University was named for “some old geezer”. I pointed out that the old geezer was one of the most successful generals of the First World War, some would say the most successful, known for his meticulous planning and his refusal to squander his men’s lives in worthless attacks. His mastery of coordinated warfare – air, infantry and tanks used in unison – led to the breach of the Hindenburg Line and the realisation by the Germans that the game was up; the Armistice came shortly after.  Not many old geezers have such a record.

And the French have never forgotten the sacrifice of these soldiers from so far away. There are mementos everywhere.  We stayed in Péronne, location of one of Monash’s great successes – the taking of the Mont Saint-Quentin heights at Péronne by Monash and the Diggers is regarded by some as the greatest military achievement of the war – it forced the Germans back to the Hindenburg Line, their last great defensive position, which Monash, with the Diggers as the spearhead, was later to crack. The road to the local supermarket was the Route des Australiens. And above every blackboard in Villers-Bretonneux’s Victoria Primary School (named for guess where) there is the inscription “N’oubliez jamais l’Australie” (let us never forget Australia). I find it very touching.

And with that I wish you all a merry Christmas and a happy, prosperous and, above all healthy, 2020.

< Back