Constitutioneel Hof Sint Maarten

And now for something completely different. Those following this blog and my twitter posts, know that I am particularly interested (besides treaties) in the effect of treaties and legislation on the former Netherlands Antilles and the interaction between those jurisdictions and the Kingdom of the Netherlands. I therefore started a new blog on the Constitutional Court of Sint Maarten, also because i) no such sight exists, and ii) it is the only court capable of constitutional evaluation in the Netherlands. The site is available at constitutioneelhof.wordpress.com and contains the full text of all (3) decisions in all (2) cases up till today. As far as I know it is the only site with the texts of those decisions in a format in which copy-pasting is possible. Feel free to do so (there is no copyright on judicial decisions in the Kingdom) or to link to those decisions directly!

Unified Patent Court and unitary patent in the Netherlands: an update

Last year, as basic information for a public consultation, the Dutch government showed their
* draft approval act of the Unified Patent Court and
* draft act amending the patents act
[I have commented at the consultation regarding my concerns on the implementation for the part of the Kingdom of the Netherlands where the European Patent Convention applies, but not EU law (and thus not the unitary patent regulation), but that is not the point of this post]

The logic step after consultation (and -minor- amendment of the draft implementation act) is to send both draft acts for comment to the Council of State (Raad van State) for its mandatory advice. The Raad van State took its time and only delivered its advice on the amendment of the patents act in January 2016.

After the advice, the Government may amend the draft act, and send it, with the Advice, and its comments on that advice to Parliament. When approving treaties, it is customary to send the implementation act and the approval act of the treaty together, so they can be treated together.

Approval of the Agreement: status
This time however, things went a bit different. The Government placed the draft legislation on a list with urgent draft acts requiring speedy treatment in parliament; and send out the piece a few weeks after the Advice was received, but ... only the approval act of the Unified Patent Court, and NOT the draft patents act amendment, stating that needed more time. Parliament (in this case the House of Representatives, Tweede Kamer) did not sit around and send out its first round of written questions last week (apart from the "usual" questions like if there will be a Dutch local division/language arrangements; in this case also questions regarding who is competent for "searches based on a search warrant in UPC cases" and the link with breeder's rights.

Regarding the Amendments to the patents act, I have no idea what is the status, as the advice of the Council of State is only published upon presenting the draft act to parliament. So we don't know what the cause for the delay is. The amendments concerned 2 main things: bringing terminology between EU legislation, Unified Patent Court Agreement and the Patents act in line, so there would be no discussion (and thus also no divergence between national/classical European Patents and unitary patents), and making sure that after unitary effect was granted, the national/classical Dutch part of the European patent would remain, but only with regards to the Caribbean parts of the Kingdom where the unitary effect does not apply. [My guess is that it is this second change that is causing the government a headache. This headache may be strengthened because patents is one of only 4 areas where the countries in the Kingdom are voluntarily cooperating, and this implementation may be a source of conflict.]

The delay in this act is bound not to end any time soon. In an extremely unusual move, the government last week requested the Advice of the Council of State again. This time not for a new version of the approval act, but in a "verzoek om voorlichting" (a request for education/information) regarding a new European patent system". This can only mean that the government does not know or is in conflict on how to proceed following the advice. We unfortunately don't know the advice, nor do we know the content of the new request, so we'll have to wait and see what happens! It does seriously call into question whether the Netherlands will be amongst the initial users of the Unified Patent Court system: the Netherlands say they can ratify without the implementation act, but in my modest view that would give rise to too much legal uncertainty; it certainly has never been the plan from the beginning. ...

Unified Patent Court and Unitary Patent: what UK and NL can learn from eachother

Two days ago, I have placed myself in the perspective of the Isle of Man, and 5 islands of the former Netherlands Antilles in order to discuss the different modes of implementation for the unitary patent and the unified patent court the Netherlands and the UK have chosen with regards to their "dependent territories". Todays post is an advice to both governments. Their legislative proposals both have merit to some extent and they could lear from each other. Combined with a good "Treaty-notifier" advice, in my opinion the system should be implemented like this:

Unified Patent Court: Netherlands should listen to the UK

The Unified Patent Court Agreement (UPCA) is silent on whether it can be extended to dependent territories. While regarding European patents without unitary effect its decisions have effect on the territories, it is not clear whether infringement actions on the territories would be covered. The preambule starting with characterisation of the signatories as "Member States of the European Union" could suggest that the territorial scope is that of the EU, and thus does not cover the territories. 

The UK bluntly states that it will extend the treaty to the Isle of Man, and thus the UPC will full apply. It seems a judgement call whether this is possible, in which the depositary (Council of the EU) has a final say, but if they do (and I think they will, in treaties, a lot of latitude is given with regard to extensions generally when the treaty is silent on it), then it is by far the easiest way to keep the European patent "uniform" within UK+Isle and NL+Curacao+CaribbeanNetherlands+SintMaarten. 

Unitary Patent: UK should listen to the Netherlands

The Unitary patent is governed by the Unitary Patent Regulation, an EU Regulation, which territorial scope is the territorial scope of the EU and excludes these territories. The UK may state that by ratifying the UPCA, the territorial extent of the Unitary Patent Regulation will extend to the territories, but that's would be the first time the territorial scope of a Regulation is extended in this way [the EU, NL, and UK could enter into a treaty of course that extends certain regulations to the territories, but that's a long term solution]. The Dutch made a more clear interpretation of the interaction of the Unitary Patent Regulation with the European Patent Convention: if the "national" European patent without unitary effect will be assumed never to have taken effect when the unitary effect is granted, that has no effect for the territories not covered by the unitary effect. In other words, the unitary effect does not have the effect that the national European patent disappears, but its territorial scope is reduced to the Isle of Man and remains in existence as national European patent under national law. In the UK this is the EP-unitary and the EP-UK coexist, where the latter is best identified as EP-UK-"EPCnonEU" ("European patent in effect as a national UK patent with a territorial scope of the territory under the EPC, but not the territory of the EU: EP valid in the Isle of Man only), to identify its -very- limited territorial scope as a residual national European patent. 

Law applicable to EP-UK-"EPCnonEU" and EP-NL-"EPCnonEU": a suggestion from me

National law still applies to the EP-UK-"EPCnonEU" (EP Isle of Man) and the corresponding residual Dutch national residual European patent (EP-NL_"EPCnonEU"). That means separate renewal fees etc and thus extra costs and handling. Luckily, if implemented as described, the UPC has jurisdiction. However -unlike the corresponding unitary patent- during the transition period the residual European patent may also be tried in national courts. 

In order not to make the treatment of residual European patents different from the unitary patent, I propose to include regulations in the national laws, in which the residual European patents as much as possible have the same effect as the unitary patent. That means they apply the unitary patent regulation as a matter of national law. The implementation should make sure that the residual European patents are really "glued to the unitary patent" by the following provisions regarding residual European patents:

-Exclusive competence for the Unified Patent Court (also during the transition phase)

-any change in the text of the unitary patent will have automatically the same effect for the residual European patents

-the law applicable to residual European patents is  that of unitary patents (as an object of property)

-residual European Patents can not be separately owned, morgaged etc. The ownership etc follows automatically that of the unitary patent

-a license of a unitary patent including the territory of the main office of UKIPO, automatically also is covering the Isle of Man

-a license of a unitary patent including the territory of the main office of the Dutch national patent office, automatically also is covering the Curacao, Sint Maarten and the Caribbean Netherlands. 

Implementation?

Let's see if this is implemented. We haven't seen the statutory instrument for implementation of the Isle, so it is still possible this was planned all along (although that is not what is suggested in earlier documents). Furthtermore, the final proposed legislation in the Netherlands is unknown and still unpublished. It furthermore can be amended by parliament. 

In other words, there  is still time to implement this and have the territories covered in a decent and consistent way. 

Unified Patent Court and Unitary Patent in Isle of Man and other territories

Imagine, just try to imagine, you are a territory. Not just any territory... No, you have a close relationship with the European Union state responsible for your external affairs, but you are -regarding most issues- not part of the EU. Your EU member state is also a European Patent Convention contracting state and has extended application also to you: a European patent in force in "your" EU state, also applies in you. In fact, when the EPC thinks about the member state responsible for your external affairs, it deems that your territory is covered by it.

Change!

But, things are about to change for you, little territory! Several EPC contracting states have made an agreement giving "unitary effect" to European patents in their territory, thus ao solving the problem that different decisions may be made by judiciaries regarding the same patent. From an EPC point of view, you are fully included in that agreement and the unitary effect will also apply to you. Unfortunately however these EPC contracting states have shaped their agreement regarding unitary effect as European Union Regulation 1257/2012, in which they state in Article 1(2) it is also an Agreement in the context of EPC Article 142. Now, article 142 EPC agreements of your contracting state apply to you, but European Union regulations generally don't apply. 

Your contracting state has also signed the Unified Patent Court Agreement. It's clear that applies to you regarding litigation on non-unitary-effect European patents as is explicit from Article 34: 

"Decisions of the Court shall cover, in the case of a European patent [without unitary effect], the territory of those Contracting Member States for which the European patent has effect."

But for European patents with unitary effect that's not so clear because their jurisdiction is arranged in EU instruments. Whether the agreement as a whole applies to you is also unclear, as the agreement is silent with regards to it, but... it is concluded between the contracting parties "member states of the European Union", and you are not considered part of the territorial scope of EU instruments.

So what applies to you?

So, the big question remains: does the unified patent court agreement as a whole apply to you and does the unitary patent apply to you. And if not? what then? What happens if your EU member state's European patent gets unitary effect, and you are left as ..., well as what?

The answer is complicated, that's clear from the discussion above and it is a pity that the drafters of the unitary patent regulation and UPC agreement have not been more clear in their drafting. That means the answer is i) unclear and ii) varies by territory

If you are an EPC-covered territory connected to the Netherlands (Caribbean Netherlands, Curaçao or Sint Maarten), your government considers, even after suggestions not to in a public consultation (see my blogposts here, here and here):

• i) the unified patent agreement can not apply to you (and even uses an approval procedure for the agreement excluding you! despite Article 34 above)
• ii) unitary patents don't apply to you. If a European patent gets unitary effect, a small mini non-European patent will remain (called by me EP-NL-carib), covering just you and your fellow territories. What it costs is unknown, but you'll have to pay renewal fees and fulfil translation requirements. 

However, we still don't really know, as the act has not been presented in its final form to parliament.

If you are an EPC-covered territory connected to France, then we still have no idea. The approval law is silent and no provisions were made. I guess, you'll just have to wait and see.

If you are an EPC-covered territory connected to the UK, then you must be... the Isle of Man. That means you have requested in 2013 already to be part of the unified patent court. And today, the UK government has given you most of the required clarity today

• i) it will extend the Unified Patent Court Agreement to you (jay!)
• ii) that means -according to the UK- that the unitary patent regulation will also apply to you. Unfortunately it is unclear why your government thinks this is possible. That's problematic: it is not the UK that determines the territorial scope of the Regulation but -at least in last instance- the CJEU that decides that. So I am not sure if you are fully satisfied by this solution. Of course the UK could unilaterally consider it applies unitary patent legislation to you (which could also be implemented as my favourite implementation strategy: after the unitary patent applies in the UK, a national European patent -EU(UK-Man) remains, just covering you, to which -as stated in national law- the unitary patent rules apply; which means in practise: you're covered by the unitary patent). But if that's the case and infringement takes place in your territory, will the Unified Patent Court take jurisdiction? 

Conclusion:

The present situation for you as a territory is either uncertain (French territories), certain and as requested but with legal risks (UK-related) or undesirable and legally incorrect (Dutch territories). Maybe it's time to call your fellow territories and together demand the clarity and a clear route how to implement that!

My suggestions: after joining, ask your member states to

1. change the UPC to explicitly allow extending the UPC agreement to non-EU territories, part of the EPC (and that is a change that doesn't require a diplomatic conference or ratification by all)
2. ask your member state to conclude an international agreement between NL, UK, FR and the EU, extending the scope of the Unitary patent regulation to you, in a similar way that many EU regulations are applied to Norway, Iceland and Liechtenstein (the famous "texts with EEA relevance"). 

Who knows, they well might listen!

Implementation of the Unified Patent Court Agreement in the Netherlands: Bad choices for the Caribbean

[A small warning is in place. While I aim as a treaty notifier to provide neutral and factual info on treaty ratification and implementation, this post is ... different, and describes the position of its author, with which you are free to (dis)agree.]

[Warning 2: this post is written about 10 hours before the European Court of Justice decides on challenges regarding the unitary patent in cases C-146/13 and C-147/13, which -if rejected- certainly will effect the fate of the UPC The challenges were dismissed. ]

In 2013, 25 EU countries signed the Agreement on a Unified Patent Court (UPC, full text): a single court, with subdivisions in several countries, with jurisdiction on European patents. After the agreement enters into force, its judgments (e.g. revocation, or declarations of infringement) will apply to European patents in all parties to the agreement (15 at the start, but all 28 EU states may become parties). Jurisdiction on European patents in the 10 non-EU European patent convention states as well as the non participating EU parties will remain with its national courts. Furthermore in the first years, national courts of member states have jurisdiction regarding European patents (EP) alongside the Unified patent court. It is in that period possible to opt out an EP from jurisdiction of the UPC so only national courts have jurisdiction. On the other hand, if "unitary effect"is attributed to a European patent (the so called "unitary patent", which may be requested after grant, and after fulfilling certain condition), which means a single renewal fee, a single object of property etc its the UPC that has sole jurisdiction. Lost? I tend to be too (and those not lost are still struggling how the interplay is between EU law, the patent agreement and some of its vaguer provisions)! take a look at several sources on the UPC and unitary patent here, here and here.

Back to the Netherlands. In an online consultation, the Dutch government announced how it will implement the UPC agreement. The package contains the draft changes to the Patent Act (incl a 50 page long explanatory memorandum) as well as the approval act of the Agreement (also incl explanatory memorandum). Most of the changes are considered "minor" and constitute a rigorous exercise in bringing the national patent provisions in line (even while that is not strictly required) with the UPC agreement and discusses at length translation techniques and effects. It also introduces two exceptions to infringement: software decompilation (mirroring UPC article 54k) as well as the so called pharmacist's exception  (UPC Article 54e) for consistency between national and UPC provisions, as otherwise it may (opinions regarding interpretation of the UPC provisions in national courts in  differ here) be that a different law is applied to the same situation; just dependent on which court is addressed... No problems here, as far as I am concerned, as there is a good case to be made...

Dutch implementation

The problem is however with the implementation in those parts of the Kingdom of the Netherlands located in the Caribbean: the former Netherlands Antilles. European patents are extended to 5 of its six islands (Aruba has its own patent) as part of the Dutch part of the EP. In the present situation Curaçao, Sint Maarten, the Caribbean Netherlands and the European Netherlands thus constitute a single jurisdiction with regards to patents, governed by a single patent act (the Kingdom patent act that this consultation is about) with the courts of The Hague as the sole courts with jurisdiction.

There are 2 problems with the implementation from a Caribbean standpoint, at least one of which can absolutely be solved in national law; of the second problem the solution is probably possible, but I am not 100% sure.

1. Implementation of Unitary effect
When unitary effect is attributed to a patent, the unitary patent will apply to the Netherlands by virtue of the Unitary patent regulation. Because this regulation is a EU regulation, and none of the Caribbean islands form part of the territory of the European Union; the provisions of the unitary patent do not apply directly in the Caribbean. The result attribution of unitary patent is that the national EP is retroactively regarded as never to have existed. In the Netherlands however, the European part of the Dutch national EP (EP-NL) is regarded to never have existed, but the national EP remains in effect; albeit only with effect in the 5 Caribbean islands (EP-NL-Carib). Unification with the unitary patent, means thus a split of the unified Dutch EP.
Surprisingly, however, the provisions for EP-NL-Carib remain the same as for EP-NL (let;s say: limited territory; same rules). This means that (the same? there is no provision for reduced costs) renewal fees have to be paid for a territory that has just become 99% smaller in terms of GDP. Also, even although English is an official language in Sint Maarten, and it has a special status on Bonaire, Sint Eustatius and Saba, the requirements for a translation of conclusions in Dutch remains. This will become very serious hurdles for a small territory, and I don't expect many renewals (the consultation documents nevertheless enthusiastically state that there will be no strong effect on the Dutch patent office that registers EP-NL (Incl EP-NL-carib).

1.1 Alternative solution
In my opinion, a solution should be sought that "attaches" the EP-NL-carib to the Unitary patent in order to obtain "de facto" a unified area in the Kingdom of the Netherlands, to make EP-NL-carib not needlessly expensive, and to impose no Dutch language requirements on a population predominantly speaking English, Papiamento (ok, and Dutch). This can be easily done with the following provisions:
*No validation, translation or registration for EP-NL-Carib
*The ownership of EP-NL-carib follows automatically the ownership of the Unitary patent and as an object of property (incl ponding etc)  also always follows the unitary patent and is -only as an object of property- governed by the law of the unitary patent.
*Any licence or contract regarding the unitary patent that applies to the Netherlands also applies to the EP-NL-carib (note: the unitary effect still allows licensing with regards to individual countries, so EP-NL-Carib should follow the unitary patent as far as it covers the (European) Netherlands.
*Revocation actions against a EP-NL-Carib can not be initiated (as the revocation will follow the unitary patent)
*infringement actions can as with any EP-NL be brought before the Dutch judge in The Hague (there is no experience to do this on Curacao); and possibly before the unified patent court (see point 2).
*Supplementary protection certificates (SPC) based on EP-NL-carib can follow unitary patent SPC in a similar fashion. This provision can -for now- however been left out, as it will take some time before unitary patent based SPC will become relevant.

2. Territorial extent of ratification
With every treaty ratification in the Netherlands, the territorial extent is made explicit. Unlike the UK (where a treaty may be extended to the Isle of Man etc), the different parts of the Kingdom are all "countries" within the Kingdom and thus the government has to specify where the treaty applies. This is done and accepted in international law, even if no explicit clause exists that allows for ratifications by different parts of a state. The draft legislation now provides for ratification only on the part of the European Netherlands. Without further justification, it is suggested that this is the only option. This means that EP-NL (non unitary patents) can be brought before the UPC in the first years, which will however not have jurisdiction to rule on infringement in the Caribbean. Revocation  of the EP-NL by the UPC however will have effect for the EP-NL as a whole, and thus affect the Caribbean. Disputes regarding the EP-NL-carib however can only be brought before the court of The Hague (even after the initial period), and a risk therefore exist of diverging decision regarding the EP-NL-carib (Dutch court) and EP-unitary (UPC) as well as parallel litigation.

2.1 Preferred option: ratification for the whole Kingdom except Aruba
In my view the Netherlands can (and should) ratify on behalf of the full Kingdom (except Aruba). As it is stated explicitly in Article 34 of the UPC agreement, that decisions regarding (non unitary) EP are valid for the whole territory where the EP is valid, it is implicit that a country also can (and must) ratify for those parts of its territory where also the EP is valid. The only argument against this reasoning is that the parties to the agreement are "Member States of the European Union", and while it is the full Kingdom that is the subject of international law and thus that Member State, it could be argued, that this implies that only the EU territory of the states is concerned. The UPC Agreement is however not an EU treaty and refers both to  EU regulations and to the European patent convention, so there is (again, in my opinion) no reason to read to much into the territorial extent based on the term Member States .
Ratification also for the Caribbean part, will allow the judge to also consider EP-NL-Carib based on the provisions for non-unitary patents in the UPC agreement, as well as the Kingdom act (national law). Recourse needs to be taken to national law probably a bit more than for other EP, as EU law does not formally apply. In view of the uniform implementation of EU law in the Kingdom act, this should practice not constitute a big problem.

Conclusion

The suggested benefits of the unitary patent and Unified Patent Court Agreement for the European Netherlands puts five territories at a significant disadvantage. It is striking that this is not even addressed as a concern in the proposed legislation and that the policy choices here are given as the only path forward. In this post I have shown that there are two (independent) options to rectify the situation: 

*coupling the Dutch part of the European patent that is only valid in the Caribbean directly to the unitary patent that governs protection in the European Netherlands.

*Ratification of the UPC for the European Netherlands, as well as the Caribbean parts of the Kingdom, thus enabling full jurisdiction of the UPC over all Dutch EP in all parts of the Kingdom. 

Why do I care? There is certainly not much litigation expected from the small territories of these islands. I care, because from a historical perspective, the Kingdom has a special responsibility towards the islands and we shouldn't easily put aside their trouble for our own (envisioned) advantages. My concern echos the wider concern (see here: The Caribbean territory of the Kingdom and the EU: on the complicated relationship between European law and national law regarding Kingdom affairs) that further unification of the EU gives problems with the unification within the Kingdom; and thus may make further (and generally regarded unsatisfactory) changes inevitable (ranging from less integration of laws, becoming part of the EU to even: independence).

The approach seems also different from the Isle of Man, as the UK seems to do everything to apply the unitary patent also there (althouth they are unclear as to the legal strategy of how to accompoish this). It would thus be interesting to compare the UK and NL (and FR) strategies regarding its non EU territories where European Patent Convention fully applies.