After decades of discussion, the implementation of a so-called “Unitary Patent Package”, i.e. the establishment of a Unitary Patent (UP) and a Unified Patent Court (UPC), has reached its final stages.
The Unitary Patents goal is to provide a single approach to European patent protection, and thus also enforcement across European Union Member States with a combined population of almost 500 million.
Utilizing the existing European patent application procedure, a Unitary Patent will be administered centrally by the European Patent Office. After grant, a Unitary Patent will be enforceable throughout the participating Member States in a single action brought before the new Unified Patent Court (UPC).
The UPC structure will have several Courts of First Instance consisting of Local, Regional and Central Divisions in various locations, along with a Court of Appeal based in Luxembourg.
The Central Division of the UPC will have exclusive jurisdiction over declarations of non-infringement and revocation actions (other than counterclaims), whereas local and regional divisions will be responsible for infringement actions and counterclaims for revocation.
Only the UK and Germany are now required to ratify the Unified Patent Court Agreement for it to come into effect.
However, the ratification in both countries has been delayed. The delays in UK ratification are following the UK General Election and Brexit, and the German ratification is being held up in the Constitutional Court.
The earliest start is therefore expected to be medio 2018, and likely later.
Since the United Kingdom voted to leave the European Union (now commonly known as “Brexit”) there has been a lot of uncertainty in terms of the future of the Unitary Patent Package, especially with regards to its enforceability in the UK.
What we know right now, is that when (or if?) the UK in fact leaves the EU several changes will be required to the UPC Agreement governing the UP and UPC. For example, additional rules on jurisdiction and enforcement will be needed.
Furthermore, if the UK decides to leave the EU without acknowledging the jurisdiction European Court of Justice, then it is hard to imagine how the UK based attorneys will continue to be able to represent clients in the Unified Patent Court.
Some have speculated that such challenges could be dealt with as part of a Brexit negotiations between the UK and EU – but uncertainty will increase if no deal can be made.
aera will of course be monitoring the progress in the negotiations, and will update all clients, in due course.
Our specialist UPC team – with experienced European Patent Attorneys that can represent clients in the future UPC court – is naturally also on hand to guide you through these changes, helping you enforce your patent rights.
Please contact your usual aera attorney, who can begin helping you plan for these important developments.