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THE UNIFIED PATENT COURT – AN UPDATE

We last wrote about the planned Unified Patent Court (UPC) back in September 2020, when we discussed the German Government’s indication that it was their intention to have the instruments of the UPC ratified in the next year or so.

This actually happened fairly quickly, as in late 2020 both of the German Houses of Parliament passed the laws required for the introduction of the Unified Patent Court and European Patents granted with a Unitary effect. The Preparatory Committee of the UPC released a statement about this, noting it as a “positive conclusion of the procedure in Germany” and stating that “A timeline and a more detailed plan for the start and execution of the Provisional Application Period will in due course be published”.

In hindsight, it seems this was perhaps a little premature. In January 2021 it was reported that once again the German ratification of the UPC was put on hold due to two interim injunction applications (constitutional complaints) being filed in December, challenging the ratification of the UPC. Thus, the German ratification of the UPC agreement was put once again on hold.

 

July 2021 – German ratification

The good news for the Unified Patent Court was that on 9th July 2021, the German Federal Constitutional Court dismissed the two interim injunction applications which were standing in the way of German taking the final ratification steps. It is expected that Germany will now proceed to deposit the instrument of ratification for the Unified Patent System.

It may be that the system slated at one point to launch in 2016 will finally arrive in 2022.

 

Background to the system

European Patents granted with a unitary effect, or ‘Unitary Patents’ (UPs) will make it possible to get patent protection in up to 26 EU Member States by submitting a single request to the EPO, in theory simplifying and making patent protection more cost effective for applicants. The Unified Patent Court (UPC) is court system which aims to deal with the infringement and validity of both Unitary Patents and original European patents. Once it launches, the Unitary patent system is to run in parallel to the current European Patent System. More detail about the plans for Unitary Patents and UPC can be found on the European Patent Office’s website.

 

Will be UK be joining?

The United Kingdom will not, as it stands, be participating in the Unified Patent Court. The UK Government in mid-2020 reaffirmed the UK’s withdrawal from the Unified Patent Court system. The Government indicated this was in view of the United Kingdom’s withdrawal from the European Union. Future Governments may seek to join the system, and membership of the European Union is not technically a requirement to be a part of the UPC system.

It is still not clear what will happen to the seat of the central division which was originally planned to be located in London.

European Patent Attorneys with the appropriate current qualifications will be able to act in front of the Unified Patent Court (UPC) as a legal practitioner, if and when the Courts open. TLIP European Patent Attorneys have this required qualification and should be able to act before the Courts once they open.

 

European Patents (and Brexit)

The European patent system will continue to run, even after the UPC system launches. Despite Brexit, it is still possible to apply for a European patent through the UK Patent Office, or directly at the European Patent Office (EPO). European patents can grant protection for an invention in more than 30 countries in Europe (plus those outside of Europe with special agreements with the EPO). This is through the (non-EU) European Patent Convention (EPC), a multilateral treaty instituting the EPO and providing an autonomous legal system through which European patents are granted.

European patent attorneys based in the UK continue to be able to represent applicants before the EPO, including at EPO centralised opposition proceedings.

In accordance with the Withdrawal Agreement concluded between the EU and the UK, the UK officially left the European Union at 11 p.m. GMT on 1 January 2020. The UK’s intellectual property laws and the of protection provided to rightsholders will remain largely the same. Most European Union intellectual property laws have already largely been adopted into UK law or will otherwise be maintained post-Brexit. We specifically note the following for patents:

Patents remain perhaps the least affected Intellectual Property Right. As the European Patent Office is not an EU agency, leaving the European Union does not affect the current European patent system. Existing granted European patents validated in the UK are also unaffected, and any pending European patent applications are also not affected.

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We will of course continue follow the UPC saga as it continues to develop.