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What has changed in the UPC regime in 2015 and what can we expect in 2016?


A Better Idea Of When The UPC Will Open

Before the Unified Patent Court (UPC) can open, thirteen countries (which must include UK, France and Germany) need to ratify the Agreement on a Unified Patent Court. As we reach the end of 2015, eight countries (including France) have ratified the Agreement. This means that if UK, Germany and just three other countries ratify the Agreement in 2016, the UPC will open for business.

In the meantime, the UKIPO have settled on the location of the London branch of the Central Division of the UPC, which will also be the location of the UK’s Local Division. Other logistics steps are being taken to make sure that courts are ready when the ratification process is complete.

During 2015, the final challenges made by Spain against the legality of the UPC and Unitary Patent package were rejected by the Court of Justice of the European Union.

Once the necessary number of ratifications have been made, there will then be around a 4 month period after which the European Patent Office will be able to issue the first Unitary Patent.

It seems unlikely that the first will be filed before the Unified Patent Court, or that the first Unitary Patent will be issued in 2016. However, starting the regime in 2017 seems increasingly likely.

A Better Idea Of The Countries A Unitary Patent Will Cover

At the start of 2015, the Italians were not prepared to allow a Unitary Patent to cover Italy. However, in 2015 they have had a change of heart, and so a Unitary Patent will be able to cover Italy (once they have ratified the UPC Agreement).

Although Spain (which has not signed up to the Unitary Patent Regulation), Poland (which has indicated that it will not ratify the UPC Agreement), and Croatia (which joined the European Union more recently and has not yet signed up to the Regulation or Agreement) will not be covered by a Unitary Patent, the other 25 countries of the European Union could be covered.

A Better Idea Of What It Costs

While 2016 should bring some further clarity on costs, in 2015 we learnt that the fees for renewing a Unitary Patent will be equivalent to the fees for renewing a national patent in each of UK, France, Germany and The Netherlands.

We also learnt that the fee for opting a European patent out of the Unified Court system will be €80 (with a further €80 for opting back in).

While there are still some issues to determine on the costs for actions before the UPC, we at least have an indication that the court fees for an infringement action (including a counterclaim for infringement) will start at €11,000, with a value added element based on the value of the case potentially going as high as €220,000. Court fees for a revocation action will be €20,000.

In 2016, we should learn the fees that will be payable to the EPO when electing for a Unitary Patent, and confirmation of the final structure of the court fees, including whether there will be a partial refund when the case is settled or terminated early, or whether SMEs and other parties may be able to avoid the value added element.

What You May Need To Do In 2016

People with existing European patents or patent applications may wish to opt their cases out of the jurisdiction of the UPC. This can be done at any time during a transitional period that will last for at least seven years, but only if an action has not already been brought before the UPC.

The EPO will be opening a sunrise period before the UPC begins within which owners can file a request to opt their European patents and applications out of the UPC, and this will have effect as soon as the UPC starts.

This will ensure that owners are able to ensure their patents are opted out of the UPC on day one to avoid the risk that a third party brings a revocation action before the UPC, thereby preventing a later opt out.

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.

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