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Bumpy road ahead for the unitary patent

The unitary patent has been in the works for a number of years. The basic idea is simple: allow for a central system of patent litigation for patents in Europe (as opposed to litigation being tied to each of the individual countries where a European patent is validated). Based on the agreed rules, a new court would be established having a central division in Paris, London, and Munich.

For the unitary patent to come into effect, France, the UK and Germany must ratify the agreement. France has done so in 2014 already. Ratification by the UK has been called into question after the Brexit vote, but since then there have been statements by the members of the UK government indicating that they are still open to ratifying the agreement. On June 13th, a new obstacle to the implementation of the unitary patent emerged. Germany, which was well on course to ratifying the agreement, put a halt to it in view of a complaint from an unnamed individual insinuating that the ratification would violate German law. The German constitutional court in Karlsruhe put the ratification process on hold while it investigates the complaint.

Although accelerated proceedings are expected, the process is likely to further delay the implementation of the unitary patent and the start of operation of the Unified Patent Court. It now seems more and more unlikely that the courts can start reviewing their first cases in December 2017, as originally planned. With further delay of German ratification, the UK’s Brexit negotiations can also further affect the start of the unified court’s operations. We will keep you updated on any further developments in the long and difficult story of the unitary patent.

The Year of the Unitary Patent?

Italy is 12th country that ratified the Unified Patent Court (UPC) agreementOn Friday, February 10th, Italy has ratified the Unified Patent Court (UPC) agreement.

As of now, the deal has been signed by 12 countries including France. As we previously wrote, approvals from 13 countries including the UK, France and Germany are needed for the UPC to come to fruition. Germany has said that they will ratify the agreement, provided so does the UK.

After the Brexit vote in June 2016, strong doubts were raised regarding the future of the UPC. However, in November 2016, the British minister for Intellectual Property, Baroness Neville-Rolfe reiterated the UK’s commitment to the UPC and the Unitary Patent. She then stepped down in December 2016, prompting questions on whether her assurances would be honored by her successor as IP Minister, Jo Johnson. Mr. Johnson is the younger brother of the UK’s new Foreign Secretary, former mayor of London and a staunch Brexit supporter Boris Johnson. When asked on his stance regarding the UPC, Mr. Johnson claimed that it may form part of the wider Brexit negotiations.

Meanwhile, the UPC committee has announced that the court will start operations in December 2017. Stellbrink & Partner will keep you updated on the status of the Unitary Patent in these tumultuous times.

Back from the dead – the Unitary Patent on track again

In the works since 2009, the European patent with unitary effect (EPUE), or, as it is more commonly known, the Unitary Patent, has faced many hurdles on its way to adoption. Legal challenges by Spain and Italy, lengthy negotiations on the locations of the courts, disagreements on translation requirements – all of those slowed down its arrival. However, June 23rd 2016 seemed to put the last nail in the Unitary Patent’s coffin. The Brexit vote meant that Britain would be unlikely to ratify the agreement any time soon (or at all!) and lead to many prominent figures in the IP world to coin the Unitary Patent as “dead”. Many said that the UK would pull out of the agreement, leaving it in rumbles (as it currently stands, Britain’s approval is necessary for the Unified Patent to come into being).

However, in an unexpected move on November 28th, Baroness Lucy Neville-Rolfe, the British minister for Energy and Intellectual Property, confirmed that Britain will ratify the unified patent system, Reuters writes (http://uk.reuters.com/article/uk-britain-eu-patents-idUKKBN13N2AW). The UK would sign the agreement in the first half of 2017.

A large part of the Unified Patent agreement centers around litigation courts that will rule on patent disputes across all of the member states. The central division is planned in Paris, with thematic divisions in Munich and in London. It may be that the UK’s desire to have a regional court in its metropolis played a role in this surprising decision. Some are sure to speculate what this decision means in the larger context of Brexit – will the UK seek closer EU ties than previously expected? As for patent professionals and innovators, we will keep watch to see how the other stakeholders will react to the British move. In particular, Germany has yet to ratify the agreement concerning the Unified Patent Court before it can enter into force. In any case, we will keep you updated about further developments.

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