Oddfellow February 2021

J.A. McStea, Teemacs GmbH

Oddfellow 2021_01

Bubendorf 22 February 2021

This is the end, my friend..

…this is the end, my only friend, the end, as Jim Morrison famously put it. Or is it? The appropriate vote on ratification of the UPC was taken in the German Bundestag, but again the Bundesverfassungsgericht (BVerG, Federal Constitutional Court) has directed the President not to sign the legislation into law, because there is a constitutional question to consider. Two complaints, 2 BvR 2216/20 and 2 BvR 2217/20, have been received, not known from whom, but one will almost certainly be from renowned UPC opponent Ingve Stjerna. As the BVerG receives something like 5000 applications per year, and accepts only very few of them, it’s an indication that it does see a serious Constitutional issue. So, unless something extraordinary happens, the UPC is off the cards until 2022 at the earliest. Or perhaps forever?

Germany is a civil law jurisdiction; unlike the common law countries, which interpret a statute as it sits on the page, according to the ordinary meaning of the words, civil law jurisdictions often say, “Aha, but what did they mean by that?” and go back to the so-called travaux préparatoires, the original parliamentary minutes and discussions that led to the law.

Does this help or hinder the cause of the UPC? Difficult to say; the Constitution of the Bundesrepublik Deutschland, the so-called Basic Law (Grundgesetz) was adopted in 1949, long before the UPC was a twinkle in anyone’s eye – the world was too busy recovering from the efforts of the immediately previous German Administration to be concerned with boring minor details such as intellectual property laws. Although based on the constitution of the Weimar Republic, its basic mission was to ensure that there could be no reoccurrence of Nazism (for example, Germany’s Federal police force has only jurisdiction over border protection, railway policing and aviation security, all other policing falling to the police of the individual states). The Basic Law gives the BVerG sole power to determine what is and isn’t constitutional – it has the power to decree entire statutes null and void, and no appeal is possible.

So, how will it decide on something that the Basic Law didn’t anticipate? Last time, it was easy; there wasn’t a quorum in the Bundestag when the vote was taken, so the legislation failed. The other issues, the more substantive ones, were ignored – because they weren’t relevant or because the issue was essentially decided? (As it was, a minority of the judges voted to proceed with ratification of the UPC). My personal feeling is that the UPC has the force of an idea whose time has come – the individual states want it, the EU wants it the EPO wants it – and that, this time, the BVerG will permit ratification. But what if the Court does find that the UPC agreement is fundamentally incompatible with the German Basic Law? Then it’s back to the drawing board, and perhaps the end of the idea of a pan-European patent for another generation, or even for good.

In the meantime, the question as to whether the UK can remain an EPC Contracting State has again arisen, courtesy of the UK’s plan to join your goodselves in the CPTPP. If this proceeds, it will require changes to the UK’s patent law to align with the CPTPP provisions. In particular, there is the question of the CPTPP grace period of 12 months. This is significantly different from the current grace period provisions in the EPC, which are essentially limited to evident abuse or presentation at international exhibitions (Article 55 EPC). However, some EPC member states already have grace periods in their national legislation (e.g. 12 months for Turkey and Estonia, 6 months for Albania and San Marino, although these are supposed, eventually, to bring their laws into conformity with the EPC), so perhaps it mightn’t be such a deal-breaker. However, it would mean that, to take advantage of a UK grace period, the patent application would have to be a national one. Once upon a time, it was possible to designate particular EPO states in an application, with the proviso that the payment of 7 designation fees meant that all states were designated. Nowadays, EPO Form 1001 only makes provision for the designation of all Contracting States at once, so one cannot designate everywhere except the UK for an EP patent, and a separate UK national patent. It could make things rather complicated for applicants.

Of course, if the EPO were to adopt a grace period, all would probably be well. And this is a possibility. The issue arose at an EPO Symposium on Harmonisation, attended by the heads of delegations and representatives of Denmark, France, Germany, Japan, the UK, the US, and the EPO. The result of their deliberations may be found here. No conclusion was reached, except that any European grace period should be a safety net only.

For we inhabitants of the Waldenburg Valley, a time of great mess is almost upon us. The local single-track, narrow-gauge railway, the Waldenburgerbahn (WB), has the narrowest gauge in Switzerland, 75cm. For many years, there has been consideration of conversion to metre gauge (the standard for all Swiss tramlines and nearly all of its narrow-gauge railways). This would be expensive, but against this would be that the rolling stock could be off the shelf, instead of something specially made for this tiny gauge. They would also be a lot more comfortable than the very narrow WB rolling stock, which got very crammed at pre-COVID peak periods. They could be air-conditioned and even driverless. Finally, the BLT, the Basel tram company that owns the WB, has bitten an entire arsenal of bullets and decided that the time has come. We’re only talking about 13Km of line, but it’s a mammoth undertaking, especially as much of the track is embedded in the road, which will have to be dug up. Because of the longer trains, new passing loops will have to be included. At the same time, all of the stations will be renewed, particularly Waldenburg Station, with its storage and maintenance facilities.

Along the length of the valley, there are preparations as if for a siege. Large areas are being set aside for equipment and materials, the intention being to attack at multiple points. The 75cm WB will run for the last time over Easter, and then that will be that until December 2022. The valley will be serviced by the bendy buses of the BLT. Given that they lack the capacity of the trains, they’re going to need a lot of them, and we’ve already been given notice to allow more time for journeys. How it’s going to work in with the Swiss Federal Railways at Liestal (the other terminus of the WB) I don’t know. I’m sure it will all be wonderful in 2022, but until then, we’re expecting total chaos.

So, it’s a good job that I won’t have to go to Givaudan in Zug for the foreseeable future. The COVID business has meant that I work entirely from Teemacs and I ride my bike to and from the office. And I bought a nice new one to do the job. This is one of a new generation of lightweight e-bikes with the battery in the down tube. It’s just like a normal bike, but when I get to the steep hill on top of which we live, I press a button and I suddenly have the leg muscles I always wished I’d had. I do this in all weathers, except when there’s ice and snow (I once came off the bike on black ice (invisible, but like a skating rink) – my poor bottom hurt for 3 weeks, and I’ve no desire to repeat the experience).

In the middle of all this virus business, we recruited a new patent attorney from the UK. Poor girl was told 2 days before she flew that she wasn’t allowed to fly – courtesy of this new breed of COVID sweeping the UK, only Swiss citizens and residents were permitted entry. Givaudan managed to sort out things, and she arrived – and went straight into quarantine. She is now out, and now begins the logistical nightmare of getting her up and running when the Zug office is only occupied by maximum two people at a time.

Swizzieland has been slow off the mark with vaccinations; at the moment, our canton (Baselland) is still working its way through over-75s, nursing homes, medical staff and people with severe health problems. I belong in none of those groups (yet!), so I continue to self-isolate. Sometimes I’m the only person in the building in which Teemacs is located. I’ve hinted to the owner that I should be paid caretaker’s/night watchman’s wages. I don’t think he’s listening.

Still on the COVID front, an EPO Board of Appeal has referred to the Enlarged Board the question as to whether mandatory appeal proceedings via video conferencing are legal. Video hearings have become necessary because of the ongoing COVID problem, but the EPO appears to be making preparations for oral proceedings always to be done this way, even after the pandemic is over (it will be over one day, won’t it???), courtesy of new rule of procedure of the Boards of Appeal, Article 15a:

(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videoconference if the Board considers it appropriate to do so, either upon request by a party or of its own motion.

(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.

(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference.

There is some debate as to whether this is consistent with the wording of the EPC. However, as some folk have pointed out, it is reminiscent of the case that sought to show that Haar, the location of the Boards of Appeal, is not in Munich, and therefore in contravention of the EPC. In G2/19, the Enlarged Board found, unsurprisingly, that Haar is indeed in Munich. I suspect that Article 15a will likewise be found to be OK, and the hotels and restaurants in Munich and The Hague will have less custom. In other words, business as the new usual.


< Back