Re: Good idea, poor implementation?
- the EPC is not an EU instrument. It has nothing to do with the EU.
Sure, but why should EU membership of signatory countries be a requirement then? That's the bit I don't understand.
- the jurisdiction of the CJEU is the cited reason why the UK pulled out of the UPC in the first place, so the red-line holds.
I wouldn't read to much into what the current low-skilled clueless government says or does. They don't know what they're doing and their opinions will have very little bearing on what (and who) will ultimately decide the outcome.
Settling the UK's outstanding financial commitments was a red line, until it wasn't. A border down the Irish Sea was a red line, until it wasn't. Enrolling in programmes that are regulated under EU law (and therefore mean CJEU jurisdiction), from science, health and education to security, law enforcement and energy will become a pressing decision for the UK in the next few years. Either under the current festival of incompetence or the next. By the time the UK has a chance to think about patents again (not in the next few years if you ask me (it will have already enrolled in EU programmes with CJEU jurisdiction so that won't be an obstacle for a European Unitary Patent.
- devising an UPC system that is essentially an international court, outside the EU, but available only to "contracting members states" (of the EU), and appeals directly to the CJEU is not required or even sensible. Unlike the EPC (which has no such constraints), it precludes the involvement of a multitude of states that might otherwise be able to harmonise patent law and case law, not least the rich set of states contracting to the EPC.
A truly inclusive international agreement for harmonisation of patent law and interpretative and litigation case law is what is needed here. Not an exclusive court answerable to the CJEU that knows, frankly, nothing about patents, their validity or infringement anyway.
I don't think you and I are that far apart. I don't see why this system should be limited to EU countries. But, I do understand why it made sense to use an existing legal order like the European Union instead of having to reinvent the wheel and recreate an entire parallel structure.
I'm not sure it matters whether the CJEU know much about patents, they needn't get involved in that anyway. If the system would work in any way like it works now, the CJEU does not get involved in the technicalities of a case that is put before them. Their role is solely to interpret EU law, elaborate on it in relation to the question the referring court has asked them, and then hand it back to the court that referred the case so that can hand down a final verdict.
In this case I would image that a case about a patent for 'a better mousetrap' that would be referred to the CJEU by a European Patent Court wouldn't be about the workings of the mouse trap but about whether the process that was followed by the quarrelling parties has interpreted EU law or principles correctly.