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Unitary Patent and Unified Patent Court

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The European Union package includes two regulations that would create a European Patent with unitary effect (“Unitary Patent” or “UP”) and a Unified Patent Court (“UPC”) Agreement (“UPCA”—a treaty) that would create a Unified Patent Court. The UP regulations specify that they would be effective on the same date as the UPCA on the first day of the fourth month after minimum ratification of the UPCA by 13 EU states including France, Germany and the United Kingdom.

A Protocol on the provisional application (“PPA”) of the UPC Agreement that would permit some parts of the Agreement to be applied immediately after the last two required states, Germany and the UK, give notice that their Parliaments have approved ratification of the Agreement. The PPA will permit organizational activities before the UPCA enters into full force and the court opens, including the recruitment of judges, testing of IT systems and early registration of opt-out demands. As of December 1, 2017, Germany and two more stares must express their consent to be bound by the PPA before the Provisional Application Period (“PAP”) can begin

The UK Referendum on June 23, 2016, in which 51.9% of those voting favored leaving the EU (“Brexit”), and a snap election in the UK on June 8, 2017 slowed progress toward implementation of the UPC and UP. Now, however, there is a good chance that the UK Parliament will complete its approval process by the end of 2017 or early in 2018. The last required legislative step is approval of the Protocol on privileges and immunities (“PPI”) by both houses of Parliament, which is not expected to be controversial.

It has always been intended that Germany would be the last required state to deposit its instrument of ratification, in order to control the Court’s opening date. Everything was going smoothly in Germany until April 2017, when an individual filed a complaint with the German Constitutional Court, challenging German ratification and participation in the UPC on several grounds of German and EU law. Such individual challenges are common in Germany, although very few such complaints move past a preliminary review for admissibility of the complaint. Nevertheless, in June 2017, the German President halted the ratification process pending action by the Court. Responsive comments by the German government and organizations invited by the Court are currently due December 31, 2017. A decision by the Court, on the question of whether or not the complaint is admissible, is expected in early 2018.

If the UPC is to be established without amendment of the UPC Agreement or a new protocol, and a new round of approvals by participating states, deposit of the minimum ratifications—including those of Germany and the UK—must occur before the UK ceases to be a member of the EU. That is because signature by the UK as an EU member is required for the Agreement to take force. Currently, the UK plans to leave the EU on March 29, 2019.

An obvious question is whether the UK can remain a member of the UPC after leaving the EU. The prevailing opinions by UK and German experts indicate that the answer probably is “Yes.” Indeed, it appears that after the UPC is established, its Administrative Committee may have the authority to make any necessary amendments to the UPC Agreement, which would be much easier and faster than adopting and ratifying an amendment of or protocol to the Agreement.

The question of the UK’s continued participation in the Unitary Patent after Brexit is more complex, because the UP will be created by EU regulation. Therefore, any continued UK participation in the UP will have to addressed in the UK’s EU exit negotiations or later. In any event, because the UP will be the same as the UK part of a European Patent, practical solutions appear likely.

 

Updated December 1, 2017.

 


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