Announcement last week that the UK ‘will not be seeking involvement’ in the Unified Patent Court and Unitary Patent system is the latest blow for the much delayed EU patent, as Robert Balsters explains.
Despite fears that Brexit would halt negotiations, the UK ratified the Unified Patent Court (UPC) agreement in April 2018. At the time, this was considered an important milestone, as the UK was one of three mandatory signatories required for the agreement to come into force. The announcement last week that the UK is withdrawing from the system could represent the end of the line for the UPC, which is also waiting on the outcome of a challenge in Germany’s Federal Constitutional Court.
Short reminder: what is the Unitary Patent?
The Unitary Patent promised to facilitate the process of obtaining patent protection in the EU by simplifying and reducing many of the administrative hurdles and costs associated with obtaining patent rights across the territory. Rather than replace existing systems, such as that of the European Patent (EP) however, the Unitary Patent was designed to sit alongside them, offering businesses greater choice in their patent protection strategies.
In general, where EU-wide coverage is required, the Unitary Patent aimed to considerably lower costs by removing the requirement to provide translations in languages of member states at the European Patent Office (EPO). The right was to come into force automatically on grant across participating member states and, unlike an EP, would not need to be validated or renewed by each member state’s patent office to enter or be kept in force.
What is the Unified Patent Court?
The Unified Patent Court seeks to eliminate the likelihood of parallel disputes involving the same patent rights in EU member states. It establishes a single patent court with the power to issue decisions on infringement (including preliminary injunctions) and validity of existing EP rights and the new Unitary Patent right. Their decisions will be binding across all contracting EU member states.
Under the proposed Unified Patent Court system, it will be possible to commence a single action for infringement covering all signatory member states. This will apply to all patents granted by the EPO; in other words, it can be used for patents filed under both the Unitary Patent and EP systems (where the EP has been validated in EPC countries that are part of the Unitary Patent system). The risk, of course, to the patentee would be a single revocation counterclaim, which would apply throughout the Unitary Patent territories.
When was it supposed to come into effect?
Initially, the target date for the introduction of the Unitary Patent was early 2014. This was an ambitious deadline given that judges still need to be appointed and trained, court premises still need to be found, and a great many administrative matters still needed to be undertaken before the Unitary Patent and accompanying Court system is in place. Delays have occurred as expected, and the current projection for its introduction is still to be determined, given the UK’s withdrawal and pending a challenge at Germany’s Federal Constitutional Court.
Germany’s ratification has been delayed by a constitutional complaint and it appears likely that the Constitutional Court will take some time to make its decision. Rumour has it that Germany has been waiting for Brexit and its impact on the UPC to become clear. In theory, once Germany ratifies, the system can enter into force, but now the UK has decided not to join after all, the UP/UPC system may have become much less attractive.
You can find out more about the Unitary Patent in our frequently asked questions.
Robert Balsters is a Patent Attorney at Novagraaf in Geneva.