Are We Getting Closer to the Unified Patent Court and Unitary Patent?

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In late February, we wrote an article about the unified patent system and its status. A lot has happened since then, and an update is in order to help keep track of recent developments.

Ratifications Going Forward

First, there has been some positive development in the ratification of the Unified Patent Court Agreement. For instance, Estonia ratified the agreement on 1 August 2017 and Lithuania a couple of days ago, on 24 August 2017. Overall, fourteen ratifications have taken place to date. From the high-profile patent countries, we are still missing ratifications from the UK and Germany, which are said to be required in order for the entire unitary patent system can come into force. Well, what is then happening in the UK and Germany in this respect?

Legislative Steps in the UK

Last autumn, the UK government confirmed it is continuing with preparations for ratification of the Unified Patent Court Agreement despite Brexit. This summer, secondary legislation in the form of an Order on Privileges and Immunities for the Unified Patent Court was laid in Westminster, and a similar Scottish Order will be laid in Holyrood. There are, however, still some doubts whether the UK will be able to participate in the unitary patent system after it leaves the EU, as the Unified Patent Court Agreement currently requires countries participating in the new patent system to be member states of the European Union.

Constitutional Issues in Germany

The movement towards the unitary patent system has not been trouble-free in Germany either. Earlier this year, Germany’s parliament dealt with the ratification of the Unified Patent Court Agreement and passed the legislation in that regard. Subsequently, some legal challenges arose. Due to a complaint where some constitutional issues were raised, Germany’s Federal Constitutional Court requested that the President temporarily refrain from signing the legislation until the court has decided the constitutional complaint. The court has stated that a specific date for deciding on the constitutional issues is not foreseeable. Therefore, Germany’s ratification of the Unified Patent Court Agreement remains uncertain. At least significant delays will most likely occur. 

EPO’s Recently Published Unitary Patent Guide Summarises the Procedural Steps in order to Obtain, Maintain and Manage Unitary Patents

Another recent development worth mentioning is that the European Patent Office (EPO) published first edition of its unitary patent guide last week. As you may recall from our previous article, the unitary patent would be a new, supranational option to have unified patent protection in Europe, alongside the national routes and traditional European patents that need to be validated in each contracting state where patent protection is desired. The EPO’s 40-page long guide contains a compact summary of the procedural steps in order to obtain, maintain and manage unitary patents.

The purpose of the guide is to provide an outline of the procedure involved in obtaining a unitary patent from the EPO once it has granted a European patent on the basis of the provisions laid down in the European Patent Convention (EPC). The pre-grant procedure is same for the classical European patents as well as for the unitary patents. Once the EPO has granted the European patent, a centralised post-grant procedure for the registration of unitary effect will occur by the request of a patent proprietor.

So, Are We Getting Closer?

Yes, we are getting closer but we are not there yet. Nevertheless, it is positive that some development is continuously occurring. There are, however, many question marks still in the air. Little by little though, we are moving towards the unitary patent system, even though some delays are certainly at hand.

Due to the recent developments and the resulting delays, the UPC Preparatory Committee’s chairman Alexander Ramsay has outlined a new timetable. According to Ramsay, the period of provisional application could start during the autumn 2017, which would mean that the sunrise period for the opt-out procedure would start early 2018 followed by the entry into force of the Unified Patent Court Agreement and the Unified Patent Court becoming operational.