The Unified Patent Court
12 December 2016 by Michael Downing
The Unified Patent Court is the final realisation of an idea that has been under discussion since the 1970s… that of a single European-wide patent. The European Patent Office opened in 1978, but what that does at the moment is grant something that looks like a European patent but which is actually a bundle of national patents, all with the same text (or as close to that as translators can manage). It is then maintained on a country-by-country basis, and enforced in the national courts of those countries. The same product can be held to infringe what appears to be the same patent in some countries but not in others – and this did indeed happen in relation to a ladies’ depilatory device known as the Epilady.
Agreement on the single European patent remained elusive, though, mainly due to disagreements around translation requirements. These were partially solved by the London Agreement in 2000, and then finally overcome in the “UPC Agreement” in 2013. It introduced the idea of a “Unitary patent” and set up a Court system to enforce it. This will reduce costs for businesses that secure and enforce their patents widely across the EU, although it may increase costs for companies that currently protect their inventions in only a limited number of carefully-selected countries. It will make it easier to enforce patents across the EU, but may make it more difficult to defend yourself against incoming infringement claims. The court is to have offices in Paris, London & Munich, and branches in most other EU states. Preparations began in 2014; most of the buildings have been chosen or built and judges are being recruited.
The UPC agreement was to come into force once a sufficient number of countries had ratified it – with only the UK and Germany still outstanding as of the start of this year, its future looked assured. Unitl 23 June, that is, when the UK voted to leave the EU and put the whole idea of the Court in doubt. The UPC agreement specified that only EU members could take part, and that the UK, France and Germany all had to be involved. Brexit created a logical conundrum, therefore.
The UK government has however announced that the UK will ratify the UPC. They haven’t said much else, so it’s not clear yet how the conundrum will be solved. As of today, with the UK still very much inside the EU, we are perfectly entitled to ratify if we want to, but it is not clear how that will work once the Article 50 process has run its course. The best working assumption is that the Government think the UPC is ‘A Good Thing’ so want to get it going now and think about how to square it with Brexit later. Or maybe they have a cunning plan…?
It seems to be Germany’s move now; as the last remaining country that needs to ratify the agreement, all eyes are on them. Watch this space…
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