UPC Litigation

Be ready for the Unitary Patent Package!

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 Patent (UP) aims to provide a single approach to patent protection and enforcement across 25 European Union Member States with a combined population of over 400 million.

Using the existing European patent application procedure, a Unitary Patent will be administered centrally by the European Patent Office (EPO). Once obtained, a Unitary Patent will be enforceable throughout the participating Member States in a single action brought before the new Unified Patent Court (UPC).

The Unitary Patent Package is expected to enter into force during 2020 and will be a supplement to the existing European Patent.

Brexit as well as the German constitution court have however several times delayed the UPC, and uncertainty about the outcome of these situations remain.

The current status is that Brexit is a reality, and the UK has left the EU as of 31 January 2020. We do however not yet know what kind of impact this will have on UPC and the legal framework behind the UPC system.

The outcome of the case before the German constitutional court is now the only obstacle before the German ratification can trigger the three months sunrise period for initiating UPC.

This very short period and the clashing statements from the UK government and EU leaders gives rise to an enormous amount of questions and insecurities:

Why should the existing UPC member states be willing to engage in UPC negotiations that could assist UK and British law firms to be a part of the UPC community? Especially without a clear acknowledgment of the jurisdiction of the European Court of Justice (CJEU).

Why should a post-Brexit UK be able remain a part of the UPC system without also inviting other countries like Switzerland and Norway? Countries that have been told that the system only is for EU members.

So, in an evaluation of post-Brexit, hard or soft, there seem to be three problem areas where the UK and the UPC Agreement are clashing:

  • the fact that the UK is not a member of the EU;
  • the underlying EU intellectual property law, constantly changing (without being linked to the national UK law)
  • the role of the CJEU as last instance for litigations.

The key issues to be addressed are therefore:

  • the CJEU is the ultimate guardian of EU intellectual property law. It has the final say for EU patents. This is in stark contrast with the UK governments official position: “UK courts will no longer refer cases to the CJEU, with our Supreme Court truly supreme.”
  • Assuming that the UK in the end is willing to respect the CJEU, how will the European Union be able to explain to countries like Switzerland and Norway that they cannot join? They respect the CJEU, but they are not EU member states and have for this reason been left in the cold when it comes to the UPC Agreement.

We will continuously update this page as the news from the UK, EU and Germany emerge.

Our specialist UPC team, consisting of experienced European Patent Attorneys with UPC litigation certificates who can represent clients in the future UPC court, will be ready to help you understand and prepare for these challenges, and help you enforce your patent rights throughout Europe.

If you want to learn more about the Unitary Patent Package and how Aera’s experts can help you, please contact us or send an email directly to one of our experts below.