Patent holders must prepare a patent strategy before the Unified Patent Court system takes effect.

By Deborah J. Kirk

On 26 April 2018, the UK government confirmed that the UK has now ratified the international agreement (the Agreement) to set up a Unified Patent Court for Europe (the UPC). Whilst the government promised this move in November 2016, the UK’s decision to leave the EU cast doubt on whether the UK would formally ratify the Agreement. The confirmation demonstrates the UK government’s commitment to continue to engage with European regulatory activity post-Brexit.

The UPC will allow patent holders to defend their rights with a single patent and single legal system across Europe, rendering patents less expensive and more readily enforceable throughout the EU, as opposed to the current procedure which requires patents to be registered and enforced on a country-by-country basis. The aim is to both enhance the European market, and to make the European market more competitive with the US and China in terms of patent protection. On the other hand, the unified system raises the risk of centralised revocation of a patent, which could have serious implications on high value patents.

By Deborah Kirk

The Delegated Legislation Committee’s (DLC) support for the Unified Patent Court (Immunities and Privileges) Order 2017 (the Order) suggests a swift approval of the Order by the House of Commons. Presuming a rapid approval by the House of Lords thereafter, this could mean the Unified Patent Court Agreement (UPC Agreement) is ratified by the end of 2017 or early 2018.

The DLC met to discuss the Order and passed the motion unanimously. The next stage is for the House of Commons to approve the motion. Following approval, the motion will have to pass through the House of Lords before the UPC Agreement can be ratified. The ratification discussion is scheduled for 6 December 2017.

By Deborah Kirk, Charles Courtenay, Christian Engelhardt, Yasmina Borhani and Andrea Stout

Germany’s constitutional court, the Bundesverfassungsgericht, has requested that the German President hold off on signing the legislation ratifying the Unified Patent Court (UPC) and the Unitary Patent (UP) following a constitutional complaint from an unnamed individual. The court did not disclose the nature of the complaint and only stated that it will investigate it as soon as possible in order to avoid delays. Delays in Germany will considerably affect the implementation of the UPC across Europe as Germany is one of three counties (including the United Kingdom and France) required to ratify the Unified Patent Court Agreement (UPC Agreement), the international agreement which brings these measures into effect. Ten other member states must also ratify the agreement.

The legislation, which will implement the European legislation at the national level in Germany, has already been approved by the other legislative bodies, the Bundestag and the Bundesrat, and is now only awaiting the signature of the German President, Frank-Walter Steinmeier. A court spokesperson said that Steinmeier has agreed to delay signing the legislation until the investigative ruling has been completed, which has been described as the “typical” approach.

By Deborah Kirk

The UK will ratify the Unified Patent Court Agreement despite the Brexit vote, it was announced yesterday. It is unclear whether this marks the start of a long participation of the UK in this 40-years-in-the-making unifying change in patent law in Europe or whether Brexit will result in the UK exiting the new system almost as soon as it has signed up to it.

The unitary patent (UP), or “patent with unitary effect” is in the senior stages of adoption after four decades of preparation and negotiation. When introduced, UPs will protect an invention in all participating Member States of the EU in a uniform manner. UPs will be subject to the jurisdiction of a new Unitary Patent Court (UPC) whose judgments will be binding on participating states in so far as they apply to UPs under the Unitary Patent Court Agreement (UPCA).