German UPC Complaint: Further organisations weigh in

According to Mathieu Klos of  respected German legal website JUVE, a total of seven organisations* have submitted opinions in relation to the ongoing "Constitutional Complaint" against German ratification of the UPC Agreement. While this total is lower than might have been expected (twenty-seven organisations in total were invited to comment), it nevertheless represents a significant body of opinion from important quarters.

A couple of weeks ago I reported on the publication of an opinion by the Deutscher Anwaltverein (DAV) which concluded that the complaint should be dismissed as inadmissible, or if admitted, should be deemed unfounded. Now at least two further opinions have been made public: the first by the Bundesrechtsanwaltskammer(BRAK)** (here, machine translation into English here), and the second by the German Association for the Protection of Intellectual Property (GRUR) (here, machine translation into English here).

Both the BRAK opinion and the GRUR opinion go into considerably greater detail than the DAV opinion which was the first to be reported.

BRAK concludes that the complaint should be rejected as inadmissible, or (if admitted) unfounded.

GRUR's submissions are rather more discursive and include a lengthy overview of the current European patent system and historical developments leading up to the UPC Agreement as well as a comparison with the EU Trade Mark and Design systems. They do not appear to take a clear position on admissibility, but on the specific grounds of complaint seem to conclude that these are unfounded.

Both BRAK and GRUR are therefore broadly in agreement with the conclusions of the previously-reported DAV submissions. This will probably come as little surprise to most observers.

An interesting point to note is that the GRUR submissions explicitly confirm what had previously been an ill-kept secret - namely, the identity of the complainant. In view of the continued secrecy of the actual grounds of complaint, the extra level of detail contained in the BRAK and GRUR submissions is to be welcomed for allowing the rest of us to work backwards and piece a few more details together.***

According to discussions with a German legal expert, the BVerfG has a variety of options at its disposal, ranging from outright dismissal of the complaint as inadmissible via a written decision (without any consideration of the merits), through to an oral hearing where both admissibility and the merits of the complaint are discussed in detail with the parties present. More news on the next steps should hopefully be available soon, although a well-placed source informs me that a hearing on the question of admissibility has been scheduled for just after Easter [UPDATE 24/01/18: according to Mathieu Klos, the court has now stated that no date is yet set...]. If anyone can confirm this, I would welcome your comments!

 

Author's notes: 

*Full list of organisations understood to have submitted opinions: Deutscher Anwaltverein (DAV); EPO; German Federal Government; Bundesrechtsanwaltskammer; GRUR; EPLAW; EPLIT.

**BRAK is the official German Bar Association - not to be confused with DAV, which (confusingly) also calls itself the "German Bar Association" in English! (Many thanks to my German readers for pointing out that membership of BRAK is compulsory for German attorneys-at-law whereas DAV is a voluntary membership association.)

***My observation on this point in relation to the DAV submissions was met with considerable outrage when republished on another blog - here I will simply note that, to a British practitioner, it seems unusual that the details of an alleged constitutional violation - by definition a matter of public interest - should be kept secret! If there are legal or procedural requirements for such secrecy, I would welcome confirmation - however, the publication of the third-party positions which reveal many of the details of the complaint seem to suggest that there is no such requirement. If any German constitutional lawyers are reading this, I'd welcome your thoughts!