UPC Update: Latest Developments On The Negotiations Concerning The Third Seat Of The Central Division

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Trevisan & Cuonzo

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Trevisan & Cuonzo
Updates about current status of discussions regarding the third seat of the central division of the UPC recently surfaced on the Italian press and in parliamentary activities.
Italy Intellectual Property
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Updates about current status of discussions regarding the third seat of the central division of the UPC recently surfaced on the Italian press and in parliamentary activities.

Recent reports confirm that France and Germany would have agreed to move the seat from London to Milan, on condition of withholding some competences in Munich (apparently, chemistry and metallurgy) and others in Paris (apparently, pharmaceutical patents with SPCs), which would require an amendment to Annex II of the UPCA, removing the relevant IPC classes from the ones originally assigned to the London seat.

Multiple ministries of the Italian government involved in UPC negotiations, including Minister of Justice Carlo Nordio who most recently reached out to his French and German counterparts, are said to be strongly against this solution, insisting that a better compromise be found (cf. the 24 February article published by "Il Sole 24 Ore", available here).

Rumors of such developments seem to have also reached the Italian Parliament, with a number of MPs raising concerns on the transfer of the third seat of the Central Division from London to Milan and the set of competences to be assigned thereto, asking the competent ministries to provide an update on the initiatives to be deployed to ensure that all IPC classes originally assigned to London be transferred to Milan (see question 5-00352 of 13 February, available here).

The reports so far surfaced note that whilst the transfer of the London seat of the central division to Milan may be seen as falling under Article 87(2) UPCA (i.e. an amendment to the UPCA which can be independently decided by the Administrative Committee to bring the UPCA in line with Union law, assuming one qualifies the legal consequences of Brexit as changes to Union law in application i.a. of Article 50 TEU), it is more questionable whether the same considerations would apply to amendments to the allocation of competences of Annex II to the UPCA. In other words, it is argued, whilst Brexit requires an amendment to the provision of the UPCA identifying the location of the third seat of the central division, it is more questionable whether it also requires a change of the allocation of competences decided by the drafters of the UPCA in Annex II.

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