Oddfellow March 2020
J.A. McStea, Teemacs GmbH
This is the end, my friend, This is the end, my only friend, the end…
Bubendorf, 21 March 2020
…to quote Jim Morrison, doubly appropriate as it seems that a Door may have just closed. Yesterday morning, the Bundesverfassungsgericht (German Federal Constitutional Court) said that German ratification of the Unified Patent Court Agreement would be unconstitutional, because it would violate German democratic rights as it was not passed with the necessary two-thirds parliamentary majority. German law recognises international obligations only insofar as they are compatible with the national constitution. In June 2018, the Hungarian Constitutional Court, faced with a similar objection, reached the same conclusion. No appeals are possible from a Constitutional Court decision.
So, after the recent UK decision not to participate in the UPC (see below), does this leave the whole enterprise up the proverbial creek without the equally proverbial paddle? It may do. I don’t know enough about German parliamentary practice to comment, but does it mean that, if a two-thirds majority is obtained, followed by an agreement by the individual German states (the latter generally considered a formality) all would be well? Hard to say. Chancellor Merkel’s party didn’t do so well in the last election, which saw a substantial increase in representation by the right-wing Alternativ für Deutschland Party, which joined Ingver Stjerna in the original BVerfG complaint. By my calculations, a combination of the major parties CDU/CSU and SPD, plus the FDP, could put it over the top numbers-wise, but there may be other factors about which I know nothing. More to come on this one, I think.
This may mean that any further discussion as to the UK’s participation may be pointless. As you’ll all know, the British Government sort-of announced that it would not participate in the UPC, because it wanted no truck with the strange ways of nasty foreign courts having a say in the lives of spiffing British chap(esse)s, rule Britannia, we will fight them on the beaches, etc. The UK profession hasn’t given up; on 10 March, Julia Florence, immediate Past-President of CIPA, and Daniel Alexander QC, a leading IP Counsel, fronted up to the House of Lords EU Justice Sub-Committee:
In a hearing lasting just over an hour, the two put their case for the UK’s remaining in the UPC. The basic arguments were (a) the UK has played a leading role in setting up this system, (b) British expertise will be missed, and (c) CJEU involvement in patent matters is minute, so there’ll be no nasty foreign court dictating to the UK. And, as Mr. Alexander put it, the CJEU makes rulings on points of law, which the national courts then apply according to local conditions. Somehow I suspect that this will still be too much for BoJo’s government. After all, this was the man who, when confronted by business’s concerns about leaving the EU, said, “F*** business”. Hopefully he won’t notice that the UK is, and will apparently remain, under the thrall of a nasty foreign court – the EPO’s Boards of Appeal. If that comes to the attention of the Daily Wail and like publications, who knows what will happen.
Interestingly, there has been no formal announcement by the UK Government that it would not participate, just a report in the Law Society Gazette. Their Lordships found this decidedly odd and the Chairman of the Committee, Lord Morris of Aberavon, has written to the new Minister for Science, Research and Innovation, asking for confirmation. Is there, to quote Sir Paul McCartney, hope of deliverance from the darkness that surrounds us? We shall see. But, courtesy of the BVerfG decision, it may not matter, and any unitary patent or court may be out of the question for a generation, or perhaps even forever.
So here I sit in splendid isolation at Teemacs. The place is like a ghost town – I am the sole occupant of the building where Teemacs is located, and the fitness centre next door is in darkness, ditto the Hotel Bad Bubendorf just up the road. And Switzerland seems to have developed an enormous desire for bog roll, for reasons of which I can’t quite get to the bottom, so to speak. The local supermarkets in Bubendorf are completely cleaned out. Reminds me of the bad old days in Victoria, when the petrol tanker drivers or the milk transporters or somebody like that would go on strike, and suddenly there were these massive queues at petrol stations and milk bars, whereas, if folk had adhered to their normal shopping patterns, there would have been plenty for everyone.
Our problems started when one of the guys came back to Givaudan Kemptthal from a business trip to that part of northern Italy, and tested positive for the corona virus. As a result, the entire lab was shut down and cleaned to Swiss hospital standards, and everyone had to work from home. This lasted for 2 weeks, and the lab folk are back. We in our little enclave in Zug were not initially affected, but Givaudan wanted us to work from home as much as possible and to use public transport at off-peak times. The former has to be me, as I (a) am in the danger age zone, (b) have the biggest exposure to public transport, and (c) can’t really travel off-peak, because, if I did, I’d get to Zug just in time to turn around and come home again. So Teemacs it is for the meantime.
Those of you who pay any attention whatsoever to the nonsense I write are now saying, “What’s this Zug business? Didn’t you just move to this Kemptthal place?” True, a year ago, I reported our moving to the all-new ZIC facility at Kemptthal. I can now report moving out of the all-new ZIC facility at Kemptthal. Towards the end of 2019, we all trooped into a meeting room for some sort of special announcement. The local HR representative and the Kemptthal site manager were there. Why? we thought. And then it came – we were being moved to Zug. The magic word “Zug” gave the game away. Zug is the capital of the small central Swiss canton of the same name. Its sole claim to fame is having the lowest private and corporate tax rates in Switzerland, which is why many companies are nominally based there. The Swiss law on holding companies has changed, and Givaudan S.A., the holding company for the group, would save squillions in taxes by having a presence in Zug. However, the Zug tax authorities insisted on a substantial presence – no mere plaque on the wall of a local lawyer’s office. The Patent Department was that substantial presence. Moreover, it had to be done ideally by midday yesterday.
The canton of Geneva (where HQ is located and the recipient of Givaudan tax) was naturally slightly less than amused, so Givaudan tried to placate the Genevois by waffling to the effect “intellectual property is critical to Givaudan, and so Givaudan has decided to establish a centre of intellectual property excellence in Zug”. Of course, as soon as people got to the word “Zug”, they knew what was the real story… They found a rather nice office building for us, just a couple of minutes’ walk from Zug station – well, we’re saving them squillions, so they should.
For me, it’s rather good. Zug is a fairly major station, and by going home via Luzern instead of Zürich, I get home half an hour earlier. In addition, Zug is a pleasant little town with all the banks, shops, etc, as opposed to Kemptthal’s none whatsoever. In an exploratory wander, I passed a real estate agent’s office. Interestingly, all the adverts for properties were in English. Most of them bore the legend “price on request”, and the ones that didn’t bore figures resembling those that astronomers quote as the distances between galaxies. Zug is that sort of place, low tax equals high real estate prices.
For some of the rest of the troops, the move was a major headache. One of the attorneys was about to buy a house in what she assumed was a suitable place, and had to cancel. The others have a longer commute from the Zürich region. And there is the slight problem that the inventors are no longer just in the next building, but 63Km up the road. And no canteen facilities and no shop to buy smelly stuff cheap. But such is the nature of companies – this is the deal, take it or leave it.
As of writing, we have all left it! Not sure when we’ll get back. In the meantime, I’m becoming terribly fit by riding my bike to and from Teemacs. Sadly, my trip to visit my mother for her 96th in April looks to be off the cards. The Frenchies have closed the borders, making driving to Cherbourg somewhat of a problem, and her old folks’ home is closed to visitors. Meanwhile, she becomes steadily more confused – my brother told her about the dangerous virus and she replied that she never liked Millisle (small seaside town on the Ards Peninsula in Northern Ireland). We still haven’t figured that one out.