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Unified patent update – spotlight on Spain, Malta & the UK


18th Dec 2014

We have seen a number of developments lately in the progress towards Europe’s Unified Patent. In addition to an earlier challenge that was rejected previously, Spain has continued to object, trying again to invalidate the provisions surrounding the implementation of the patent and the Unified Patent Court (UPC) at the Court of Justice of the European Union (CJEU). One of Spain’s biggest complaints is that the official languages of the Unified Patent are the same as those of the EPO, i.e. English, French and German, thus discriminating against Europeans that do not know one of these languages.

The Advocate-General of the CJEU has issued his opinion rejecting the Spanish challenge. The CJEU normally follows the Advocate-General’s opinion even though it is not bound by it so it appears that Spain’s challenge has failed. This removes one of the potential obstacles before the introduction of the Unified Patent. We do not know yet what Spain’s next move will be and wonder if they will opt out of the entire system, join in fully or find some half-way house as Italy has done.

Meanwhile, progress towards the Unified Patent continues elsewhere. Malta has now completed the ratification process, becoming the sixth country to have done so. Malta joins Sweden, France, Belgium and Denmark which ratified this year and Austria which ratified last year.

For the Unified Patent to take effect, at least 13 member states must ratify, including the UK, Germany and France. With France having already ratified, this leaves the UK and Germany. We understand that the UK and Germany are waiting until more of the Unified Patent and UPC infrastructure is in place before they ratify.

However, if the UK and Germany take too long, another potential pitfall may emerge. The UK faces a general election in 2015. Following the increasing prominence of the UK Independence Party (UKIP), a right-wing populist political party campaigning for the UK’s exit from the EU, the Prime Minister David Cameron has had to appease the “Eurosceptic” right of his own party by agreeing to hold a national referendum on the UK’s continuing membership of the EU, if the Conservative Party wins the 2015 election. The effect of all of this is that the UK’s ratification of the Unitary Patent is not a certainty.

Although exit of the UK from the European Union is very unlikely, a referendum may have the effect of delaying ratification further.

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 any action in reliance on it.

Author
Christopher Smith
Senior Associate
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Would you like to know more? You can talk to Christopher Smith who will be able to help. Call +44 (0)20 7242 0901

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