Unified Patent Court: will it come into effect in the second quarter of 2017?

europe-1395916_960_720Margot Frohlinger, Principal Director for Patent Law and Multilateral Affairs at the European Patent Office (EPO) has announced that the Unified Patent Court (UPC) could finally be operative in the spring of 2017.

The Agreement on the Unified Patent Court was signed by 25 Member States of the European Union on 19 February 2013. However, it needs to be ratified by at least 13 states, including France, Germany and the United Kingdom, to enter into force.

A Simplified Process

The advantage of the European patent with unitary effect is that only one application will have to be filed, leading to a single patent being obtained and thus to the payment of a single annual fee. This patent will initially be valid in thirteen countries before being applicable to all European Union countries.

The Unified Patent Court will have exclusive jurisdiction for litigation relating to European patents and European patents with unitary effect. It will be possible for the holders of European patents to opt-out for a transitional period (of up to seven years), thus allowing them to continue to benefit from the current system. This is subject to one condition: no action should have been brought before the unified court.

The UPC will comprise a Court of First Instance, composed of a central division (with seat in Paris and two sections in London and Munich) and local and regional divisions in each Member State as well as a Court of Appeal and a Registry.

Eight ratifications so far

So far, the agreement has been signed by France and eight other states. The ratification of Germany and the United Kingdom is still amiss. The United Kingdom is clearly committed to ratifying the agreement in the summer of 2016. The German parliament meanwhile could ratify the agreement at the end of 2016 according to Mrs Frohlinger. The European patent with unitary effect and the UPC could therefore be born in the spring of 2017.

Preservation of national sovereignty

The adoption of the European patent with unitary effect and the Unified Patent Court is a step forward in the harmonization process of intellectual property law.

Although the trend is towards growing harmonization, Member States will always retain some of their sovereignty. Indeed, the substantive law as well as the procedure relating to the European patent with unitary effect will be harmonized while all issues relating to ownership and taxation would still depend on national legislation.

“Brexit”: what will the consequences be for the UPC?

Should the UK decide to leave the European Union, this would not be without consequence since membership to the European Union is one of the requirements to be part of the UPC. If the English vote to leave the EU in June 2016, two scenarios are possible:

  • Either the European patent and the UPC will come into effect without the United Kingdom being included,
  • Or the UK’s exit from the EU will prevent the European patent with unitary effect and the UPC to come into effect.

Ms. Frohlinger assured that the consequences of a possible “Brexit” would not be as dramatic as that as because of the UK’s significant involvement in the development of the UPC, ratification of the agreement should not be a problem.

As for Benoit Battistelli, EPO President, he appears confident and considers that “we are now ready from a legal, technical and operational point of view, to issue unitary patents. The only remaining steps are the setting up of the unified patent court and the finalisation of the ratification process at national level”.