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!

SUEPO v EPO: immunity-based rejection of service of a judgement holding that that immunity doesn't apply

"National courts are not to hear cases regarding international organizations, because they enjoy immunity from prosecution.” On this basis courts generally do not assume jurisdiction in conflicts in which an international organization is involved, and generally that must be assumed to be a correct mode of action.

There are however several limits to immunity of international organizations: protocols on immunity generally exclude immunity in actions not directly related to their core task like conflicts about procurement of goods. Even if a subject matter is covered by immunity protocols, courts in -at least- Europe should take into account the case law of the European Court of Human Rights, interpreting the European Convention on Human Rights. In brief, employees of international organisations on European soil can not be denied their fundamental rights stemming from the ECHR. The pivotal case is Waite & Kennedy v Germany (nr. 26083/94) in a case where Germany had denied jurisdiction based on immunity of the European Space Agency. ECHR found that the German courts were right to do so stating that as a minimum requirement to avoid "national" jurisdiction, the international organization should have a “reasonable alternative means to protect effectively their rights under the Convention".

EPO labour dispute
It is based on the latter point that the Dutch Court of Appeal of The Hague has taken jurisdiction in a case between labour union SUEPO and the European Patent Organization (EPO), reversing a First Instance decision. SUEPO was not recognised by EPO, and was not able to appeal its non-recognition decision. While EPO argued that individual employees of EPO had recourse to the administrative tribunal of the international labour organisation (ILOAT), the judge held that that did not absolve EPO from providing an appeal mechanism to SUEPO (whether with ILOAT or elsewhere). The court thus took jurisdiction and ordered i) recognition of the union, ii) a wider “right to strike” and iii) allowing the union to send emails to its members. The judgement seemed well reasoned to me and clearly took into account the intergovernmental context, as no Dutch labour standards were imposed.

Things went interesting from a jurisdiction case law and international relations point of view from then on. To be executable, the judgement had to be served to EPO, which SUEPO had done through a gerechtsdeurwaarder (court’s bailiff) as is required in the Netherlands. EPO however refused to comply with the judgement because of its immunity. Furthermore, Dutch Minister of Justice Ivo Opstelten ordered (rather late, as the judgement had already been served, and a served judgement can not be “unserved”) bailiffs not to serve the judgement under a part of the bailiffs act (gerechtsdeurwaarderswet, Article 3a) that allows the Minister to prohibit service if it would run contrary to his obligations uphold immunity to intergovernmental organisations, embassies, ambassadors etc. I was shocked by Opstelten ordering non-service based on immunity, not because I am opposed to the principle of such immunity, but because the judge had so elaborately discussed (on appeal and not in first instance) why it held that it had jurisdiction, and from that decision it would automatically follow that denial of service could thus not be based on the -in this case not applicable- immunity. Parliamentary questions on the subject were asked and answered by Minister Van der Steur (Opstelten's successor), in which he held that -whatever the content or nature of the verdict- it could never be served by a court's bailiff, because of the inviolability of the premises of EPO, classified as an "absolute immunity from service". The minister contended however that non-service did not mean that an international organization "has no rights under international law or the law of its seat". In other words: the Dutch government holds that verdicts should be executed, but that it is not in a position to take the steps it would normally take to ensure that. I wonder if that is a position which would be followed by the European Court of Human Rights: if justice is done, but the judgement is not followed, that's just as effective as denial of justice. 
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Current litigation
The matter doesn’t end here however, as the court dispute is currently fought on “two fronts”. SUEPO has appealed the order that bailiffs can not perform service of the judgement and thus has started a case against the state. I don’t know what the status is of that case.
EPO on the other hand has appealed the judgement of the The Hague Court to the Supreme Court in “cassatie”; which means that appeal is only possible on principles of law, rather than the facts of the case. In the latter case, 2 weeks ago the Dutch state was allowed to intervene and thus become a party to the proceedings.

I am following the cases with interest, as it will make clear how far a state can go in upholding immunity (in this case: inviolability of premises), based on a reasoned judgement -whatever one may think of that- that renders immunity (from cases involving unions) inapplicable. It also is interesting to see if the Supreme Court will follow EPO in its argumentation that as its employees (the individual members of SUEPO) have recourse to ILOAT, no separate process for Unions has to be provided.

But more important of all, its time for EPO, SUEPO and other EPO employees to find a way forward in solving their conflicts, as there are far too many indications, that the working environment at EPO is in dire need for improvement.