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 currently expected to enter into force during 2022 and will be a supplement to the existing European Patent.
However, the implementation of the agreement is dependent on ratification in at least 13 signatory states of which the three most patent intensive member states must be among. Originally these three countries was Germany, France and the United Kingdom.
As of 31 January 2020, the UK left the EU and as of 20 July they also announced the withdrawal of the ratification of the Agreement of the Unified Patent Court, which in effect means that the UK is no longer a part of the Unitary Patent Package. With Brexit being a reality, Italy or the Netherlands is now expected to be the third obligatory country, whereas it still need to be decided if the system has to be rethought entirely without the UK being a part of it.
Furthermore the ratification in Germany has been upheld twice. In 2017 two complaints were filed with the German Federal Constitutional Court (FCC), which led to an annulment of the first ratification, which was made without the required two-third majority in the German Bundestag. During the end of 2020, the German Bundestag and Bundesrat approved the ratification once again, but on 18 December two new complaints were filed with the FCC and in January 2021 the FCC has asked the Bundespräsident Frank-Walter Steinmeier to wait signing the agreement and hence finalising the ratification process in Germany.
We do not yet know what kind of impact this will have on the UPC, but as the FCC spent three years on the first complaints, it could cause a major delay if the complaints are not rejected in the short term.
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.