Europe’s Unitary Patent Regulation and Unified Patent Court Agreement

05 July 2012

Several important obstacles to the enactment of the EU legislation concerning the unitary patent remain, including approval of the UPC agreement by the European Parliament. The vote by the European Parliament has in fact been postponed from 4 July because Parliament is concerned about the omission of clauses in the agreement that would have made the European Court of Justice (ECJ) into an appellate court for the UPC. Moreover, ratification of the agreement by at least 13 Member States of the EU (including the UK, France and Germany) would be necessary to bring the agreement into force. In addition, Spain and Italy (which are not participating in the unitary patent) have challenged the legality of the process by which the legislation has come into being. The European Court of Justice (ECJ) will rule on this in 2013.

Even if the obstacles are addressed as quickly as is possible under the available frameworks, the earliest a unitary patent could become a reality is 2014. In fact, it may be some time after this before the right exists in a usable form.

In time, any patents granted by the European Patent Office (EPO) would automatically be deemed to be Community patents if they designate a group of participating EU member countries. A seven-year transition period after enactment of the legislation is intended to provide proprietors of pending patent applications and granted EPO patents with the chance to "opt out" of such automatic grant of Community patent rights. The opt-out can be withdrawn later. The seven year period might be extended for another seven years if the UPC does not seem to be working as intended.

No actions or decisions seem to be warranted at present; but when the time comes our firm will be fully equipped to provide advice on "remaining in" and "opting out" both on individual European patent applications and patents, and larger portfolios.

Our firm has been involved in lobbying the UK IPO and the UK Government in connection with the UPC Agreement. We will continue to monitor developments and will update you as the picture becomes clearer. If in the meantime you require specific advice in relation to the unitary patent or the UPC Agreement please get in touch with your usual contact in our firm.


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