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 2019 or 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 therefore that the outcome of Brexit has become increasingly unpredictable, and it seems that a delay until 31 October 2019 (or beyond) is likely.
With UK continuing as a member of the EU (at least for now) will the outcome of the case before the German constitutional court be the only obstacle before the German ratification can trigger the three months sunrise period for initiating UPC.
A major challenge has therefore presented itself; a scenario where the UPC system enters into force followed by Brexit. This scenario is now more likely than ever, and many political and legal questions are therefore naturally emerging:
What happens if the UK leaves the EU after UPC has entered into force? Will all decisions and unified patents afterwards be considered irrelevant (or illegal?) because the legal foundation requires that the UK has to be member of the UPC Agreement and the EU at the same time?
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 European Court of Justice.
What part will the UK and UK legal practitioners will play in UPC after Brexit?
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.
Proceeding with the UPC and UPC Agreement without the UK seems like a much easier and secure route going forward. However, there have not been any clear political standpoints about how to handle UPC in view of Brexit at this stage.
Our opinion is simple: It seems as if the EU has been on standby since the Brexit vote in 2016 – maybe now is the right time to start working on the EUs future without the UK as a member?
Hopefully will our politicians in the upcoming MEP election debates provide us with some guidance.
We will continuously update this page as the news from the UK 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, is ready to help you prepare for these changes 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.