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Update on the proposed European unitary patent and the unified patent court


As regular readers of this blog will be aware, some 40 years after the signing of the European Patent Convention, the prospect of a single patent right that covers Europe (at least some parts of Europe if not all member states!) is getting ever closer.

The Unitary Patent will be available as an alternative to the current arrangement of national validations of a patent granted by the European Patent Office. The Unitary Patent will cover participating countries that are in the European Union and which have signed up to the Unified Patent Court. The majority of countries of the European Union (all except Spain, Italy and Croatia who only joined the EU last July) have signed up to participate in the Unitary Patent.

Unitary Patents can only be granted once the Unified Patent Court is in place. This in turn can only happen after thirteen countries (which must include UK, Germany and France) have ratified the Court Agreement, and this is the next step before Unitary Patents can be granted.

Progress on this point is being made. Austria became the first county to ratify the Unified Court Agreement in August 2013. France ratified the Court Agreement in March 2014 (confirmation now appears on the Ratification Progress page of the European Commission website), and Malta is reported to have passed the necessary national law required to enable them to ratify the Court Agreement. Denmark is scheduled to hold a referendum at the end of May to decide the question, but is presently seen as being in favour. Both Belgium and the UK are preparing to ratify the agreement before their national elections in May 2014 and May 2015 respectively. The UK IP Bill that will allow UK Patent Law to be amended to accommodate the Unitary Patent system, has been passed by Parliament, and is now awaiting Royal Assent. Corresponding arrangements are reported to be in the pipeline for Germany for later in 2014.

More details of how countries might organise themselves in the new Court structure has also emerged, with Sweden, Estonia, Latvia and Lithuania announcing that they have agreed to establish a regional division of the Unified Patent Court with head quarters in Stockholm.

If all continues at the present rate, it seems that it might still be possible for Unitary Patents to be granted in 2015, at least the end of 2015 as the Preparatory Committee now acknowledge that their initial aim of early 2015 was too ambitious. Nevertheless, anyone with a European patent application pending now could be the owner of the first Unitary Patent next year.

Behind the scenes, the UPC Preparatory Committee is working hard to establish the framework for the Unified Court system. The latest (and final?) edition of the Rules of Procedure of the Unified Patents Court has now been released (the first edition was released in May 2009 and has undergone several substantive changes before the release of the present, 16th edition in January 2014). Judges are being recruited to fill the benches of the new courts, and significantly, a training centre for Judges is now open in Budapest.

In the meantime, owners of existing European patents should still be considering whether they would like their patents to be subject to the Unified Patent Court or whether they would prefer that any litigation of their existing rights happens in national courts, in which case it would be advisable to opt out of the new court system for those cases as soon as this becomes possible.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

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