Unitary Patent and Unified Patent Court – What’s Next?

Author: Charlotta Bonsdorff

Since 2010, the European Union member states have co-operated on the creation of unitary patent protection. The unitary patent is a new European patent granted by the European Patent Office (EPO) and the Unified Patent Court to be established will have exclusive competence over European patents and European patents with unitary effect. However, ratification of the Unified Patent Court Agreement (UPCA) is still in progress and the new Unitary Patent regulations will apply from UPCA’s entry into force.

For the UPCA to enter into force, at least 13 EU member states must ratify it. This must include France, Germany and the United Kingdom. So far, 12 member states, including France, have ratified the UPCA. Italy was the latest to ratify it in February 2017. Thus, Germany and the UK still must ratify the UPCA.

An interesting question remains regarding the UPCA and its ratification, what will happen now that the UK has voted to leave the EU? The UK Parliament has already passed the relevant legislation required to implement UPCA’s provisions into UK law before Brexit. In November 2016, the UK government confirmed its intention to proceed with preparations to ratify the UPCA. Although the European Court of Justice (ECJ) will no longer have jurisdiction in the UK, it seems to be prepared to be a part of an international court where ECJ decisions would be binding. However, only time will tell whether the UK has fully committed to UPCA ratification and staying in the system after Brexit.

At the beginning of 2017, the Preparatory Committee of the Unified Patent Court (UPC) announced that they are expecting the court to begin operating in December 2017. The UK Intellectual Property Office has stated that UK’s exit from the EU will not affect the timetable, which the Preparatory Committee has already established. Germany must complete the ratification process as well. The ratification timetable for Germany remains open, but the Preparatory Committee of the UPC hopes to have Germany ratify by September 2017 to meet UPC’s deadline of December 2017.

The Preparatory Committee of the UPC published their latest version of the draft Rules of Procedure on 10 April 2017. The UPC Administrative Committee formally needs to adopt these Rules of Procedure during the Provisional Application, which is expected to happen in May 2017. The start of the Sunrise Period for opting patents out of the system is scheduled to begin in September 2017, allowing approximately three months for businesses to adjust their IP strategies.