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Unitary Patent and Unified Patent Court
27 January 2017 by Dr Matt Barton

The unitary patent package includes a unitary EU patent and a new unified patent court for litigation of unitary patents and EPO-granted patents. While the package is not yet in force, the preparatory committee has stated that the package should come into effect during 2017.

Unitary Patent

At present there is no true unitary patent. When a patent is granted by the European patent office it is validated in the countries of interest resulting in a "bundle" of national patents. The aim of the unitary patent is to provide true blanket patent coverage across Europe.

The new arrangement will cover all EU member states except for Spain and Croatia (i.e. 26 countries in total). Once the system is in place, an applicant will have his or her EPO application examined and granted in exactly the same way as the present time by the European patent office. However, at the grant stage the applicant will have the choice of having a unitary patent alongside the traditional validation approach.

The European patent convention presently has 38 contracting states and two extension states. Some of the EPO countries are not part of the unitary patent, because they are not part of the European Union; examples are Switzerland and Turkey. Therefore in the future it will be possible for applicants to choose just a unitary patent, just traditional validations or a mixture, for example the unitary patent with "add on" validations of those countries which are EPO countries but not part of the unitary patent.

An advantage of the proposed system will be the very minimal language requirements that will be needed, compared with the present system. After grant of the European patent no further human translations will be needed and the EPO will provide machine translations online. However, once the new system comes into force there will be a transitional period in which a single translation will be necessary.

The unitary patent will be kept in force by the payment of a single renewal fee set at the level of the combined fees for the four most popular validated states (Germany, France, UK and The Netherlands). It is hoped that this level of fees will be attractive to applicants, who will essentially get coverage in 26 countries for the cost of 4 traditional renewal fees.

Unified Patent Court

At present, once a European patent is granted and validated the infringement and validity of the patent is tested individually in each validated country. As well as causing complexity and expense, this also leads to legal uncertainty because different courts in different countries can reach different conclusions about the same patent.

The Unified Patent Court (UPC) will be a specialised patent court with exclusive jurisdiction for litigating unitary patents. Eventually, the court will have jurisdiction for litigation of all patents granted by the European patent office.

The UPC is intended to comprise a court of first instance, a court of appeal and a registry. The first instance court will have a central division (with branches in Paris, London and Munich) and local and regional divisions in contracting member states. The court of appeal will be located in Luxembourg.

The Unified Patent Court agreement still needs to be ratified by Germany and the United Kingdom in order for the agreement to enter into force. As soon as these two ratifications have been completed, by the Unified Patent Court and the unitary patent will become a reality.

During an "opt-out" period holders of existing European patents granted under the previous system and holders of future European patents which are not unitary patents will be able to opt-out of the jurisdiction of the Unified Patent Court and use the national courts instead.

 

Brexit

With the referendum of 23 June 2016, the UK voted in favour of withdrawal from the European Union. The UK government has indicated that it will begin this process before the end of March 2017, with the procedure for leaving the European Union to take up to two years.

The Brexit vote has cast doubt on the future of the unitary patent package because the United Kingdom is a mandatory signatory to the Court Agreement. Without the UK's ratification of the court agreement the unitary patent package will not come into force. Furthermore the legislation requires a branch of the Unified Patent Court to be hosted in London.

It is presently unclear what the UK government intends to do about UPC ratification. If the UK government takes no steps to ratify then it is possible that the unitary patent will simply be paused until such a time that the UK has left the European Union. At that point it seems that Italy would take the place of the United Kingdom as the third mandatory ratifying country (together with France and Germany). Clearly this situation would lead to a further delay to the implementation of the UPC.

On the other hand, in November 2016 the UK government confirmed that it is proceeding with preparations to ratify the Unified Patent Court Agreement. So it is also possible that the UK government might ratify the agreement, thereby bringing the UPC into effect before the UK leaves the European Union. However, once the UK has left the European Union it seems likely that the UK would also need to withdraw from the UPC (because the UPC is an EU initiative).

In summary the future of the UPC, and the UK's participation in it, is uncertain. Whether or not the UK will ratify is a political question, to which we cannot predict the answer. However, we will keep you advised as soon as more information is known (for example if and when the UK ratifies the Court Agreement).

In the meantime, despite Brexit the position of the UK as part of the European patent system, remains unchanged.