The attempt to found a single Europe-wide patent system has raged on for 40 years. In 2012, the initial plans were conceived for the Unitary Patent Court (UPC). As of 2017, it is apparent that the UPC has been beset by difficulty, and will begin operations significantly behind schedule, if at all.
On 7th June 2017, the Preparatory Committee for the UPC announced further delays for the commencement of the UPC, stating that the target December start date was no longer feasible. The Committee monitors the ratification and participation of states so it can prepare a timetable for the UPC. For the UPC to begin operating, France, Germany, the UK and any ten other states must ratify the UPC agreement. France has already ratified the agreement. The UK government has announced its intention to ratify despite Brexit, but the recent general election has delayed this.
Germany appeared to be on track to ratify the agreement until an announcement on 12th June that the Office of the President has suspended the required presidential signature. This announcement followed a private challenge before the German Federal Constitutional Court, stating that the UPC breaks German law. Due to this challenge, the German court requested Germany’s federal president to withhold the necessary signature to ratify the UPC agreement until the court reaches a decision. The exact grounds of this challenge are presently unclear.
The future of the UPC has already been thrown into question by ‘Brexit’, since it may appear politically inconsistent for the United Kingdom, which is in the process of disentangling itself from the European Union, to commit to a new European institution, especially as that institution will be bound by decisions of the Court of Justice of the European Union.
What next?
At present, two of the most influential countries in Europe, both the governments of Germany and the United Kingdom, have failed to ratify the UPC agreement. There is a certain irony in the fact that Germany, which is widely regarded as a proponent and potential captain of the proverbial UPC ship has scuppered its own project. It is currently unclear whether the UPC will be further delayed, altered or even exist at all.
The concept of having a European-wide patent system is not a novel idea – such a system already exists by virtue of the European Patent Convention (EPC). The EPC allows for grant of patents in numerous European countries from a single central application, subject to meeting some downstream translation and local representation requirements. However, under the EPC, infringement proceedings can only be brought individually in each state in which a patent is in force. Infringement of a patent is decided according to each individual state’s laws. This can be an expensive process and can lead to inconsistent decisions across different jurisdictions.
In addition, currently the only way to challenge the validity of a European patent centrally (i.e. at the European Patent Office) and seek revocation in all the designated states, is to file an opposition to the grant of the European patent within nine months of the date of grant. In order to challenge a European patent after this nine-month period, an action must be brought in every constituent state in which the patent is in force. For further information see our previous article: https://www.albright-ip.co.uk/2013/05/knocking-out-a-patent/
The UPC would seek to do away with this, creating a single court system where infringement and revocation proceedings could be brought and be effective in all signatory states. In principal creating a less inexpensive and more time efficient system.
The question still looms over the UPC, to be or not to be? At Albright IP, we will continue to vigilantly monitor the situation in Europe, enabling us to provide honest and clear advice to our clients on how to navigate the changing waters of the European patent system.