Search Team

Search by Last Name
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Z
 
 

Unitary Patent and Unified Patent Court

full services list
Unitary Patent and Unified Patent Court Image

Litigation

Post-Grant

Prosecution & Counseling

Cases
Industries
Webinars
Blog

The European Union package includes two regulations, which 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.

Progress toward the EU Unitary Patent and Unified Patent Court has been stalled for two reasons. First, an individual filed a Complaint in the German Constitutional Court in 2017, seeking to block German ratification of the UPCA. A decision of that court whether to accept that Complaint, and possibly also on the merits, is currently expected in the first half of 2020. Second, the United Kingdom has left the EU on January 31, 2020 (“Brexit”) and a UK government spokesperson announced on February 27, 2020 that “the UK will not be seeking involvement in the UP/UPC system,” contrary to prior UK statements and the UK’s ratification of the UPC Agreement.

The UPCA failed to consider the need for an organizational phase before the UPC opens to receive cases. Therefore, a Protocol on the provisional application (“PPA”) of the UPC Agreement has been devised, which would permit some parts of the Agreement to be applied immediately after 13 states, including France, Germany and the UK, give notice that their Parliament has 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 and staff, testing of IT systems and early registration of opt-out demands.

Therefore, a further agreement or protocol by the remaining participating EU states will be required, at least to address parts of the UPCA and the PPA referring to the UK and London, and possibly issues that may be raised by the German Constitutional Court. (See “The Effects of Brexit” below).

UPCA Ratification Status

The UPCA requires a minimum ratification by France, Germany and the United Kingdom, and at least 10 other signatory EU member states. France ratified in 2014. The minimum of ten “other states” was satisfied in 2016.

It always was 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. UPCA ratification and the PPA had been approved by the German Parliament. Then, in April 2017, 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. In an interview published on 20 November 2019, the judge-reporter responsible for the case stated that it would be decided early in 2020.

Although the UK deposited its ratification on April 26, 2018, the German Justice Ministry has indicated that Germany will not deposit its ratification until either an agreement is reached for the UK to participate in the UPC and UP system without being an EU member state, or the provisions in the UPCA referring to the UK and London are modified.

The Effects of Brexit

UPCA Article 2(b) defines “Member State” as meaning “a Member State of the European Union.” The Agreement also specifies the UK as a required EU member state and places part of the Central Division of the UPC in London.

Although the UK has ratified the UPCA, it left the EU on January 31, 2020, before the UPCA became effective, and a UK government spokesperson announced on February 27, 2020 that “the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.” Therefore, it appears that the UK will not participate in the system and that the remaining participating states will need to modify the UPCA and PPA to delete provisions referring to the UK and London.

Updated March 2, 2020.

Search Fish Unitary Patent and Unified Patent Court Team Search

What's Trending in Unitary Patent and Unified Patent Court

Filter by
News
March 4, 2020
Legal Alert: EU Unified Patent Court and Unitary Patent Update
Legal Alerts
News
August 14, 2019
EPO Developments—Summer 2019
Legal Alerts
News
August 14, 2019
German Justice Ministry to Await Brexit before Proceeding with UPC
Legal Alerts
News
June 28, 2017
Herbert Kunz Interviewed by Metropolitan Corporate Counsel, "What You Need to Know about Patents in Europe"
Media Mention
Q&A
June 28, 2017
Q&A with Herbert Kunz: What You Need to Know about Patents in Europe
Author: Herbert Kunz, Ph.D.
Patent
Trends
Europe
Brexit
Fish Patent Blog
June 14, 2017
Three Developments Delay UPC Agreement & Unitary Patent
Authors: Herbert Kunz, Ph.D., John F. T. Conroy, Ph.D., John B. Pegram
News
March 30, 2017
John Pegram Quoted in Law360 Article, "UK Has Uncertain Post-Brexit Role In Unified Patent Court"
Media Mention
Fish Patent Blog
March 2, 2017
Fish's John Pegram Authored WIPR Article, "UK and UPC: a test of compatibility"
Author: John B. Pegram
News
January 17, 2017
Legal Alert: European Unified Patent Court & Unitary Patent to Open in 2017
Legal Alerts
News
November 30, 2016
Fish's John Pegram quoted in World IP Review article "Greener pastures for US patents"
Media Mention
Articles
News
September 19, 2016
Legal Alert: A Path to the UPC
Legal Alerts
News
July 15, 2016
Fish's John Pegram Quoted in Reuters Legal Article, "Brexit imperils European Unified Patent Court - experts"
Media Mention
load more topics