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READY… OR MAYBE NOT QUITE YET?


22nd Jan 2020

The EPO says they’d be ready to get going with Unitary Patents later this year.

Has anyone else spotted the (Br)elephant in the room?

According to a press release published by the European Patent Office (EPO) on 10th January 2020, the EPO president António Campinos and his team have recently met with the Chair of the EPO Unitary Patent (UP) Select Committee and members of the Unified Patent Court (UPC) Preparatory Committee from the EU member states. The main item on the agenda for them was a discussion of the most recent developments concerning the implementation of UP and UPC (the so called Unitary Patent package, which we have talked about here).

In particular, the meeting came “after the judge in charge of a complaint that had been lodged by an individual against German ratification of the UPC Agreement with the German Federal Constitutional Court indicated in a recent interview that it was the intention of the Court to render a decision in the first quarter of 2020”.

As we previously discussed here, in 2017 an action was lodged in Germany challenging the constitutionality of the German legislation enabling ratification of the UPC Agreement. The German president won’t sign the relevant domestic legislation to enable ratification of the UPC Agreement unless this challenge is dismissed.

In an interview given back in November last year, the judge referred to in the EPO press release effectively suggested that it was the intention of the German Federal Constitutional Court (GFCC) to issue their decision during the first months of 2020. However, the same judge also admitted that they are following a rather complicated process, because they need to look at every detail of how their decision is formulated and worded. In fairness, one may wonder whether this process could actually take longer than currently anticipated.

Nonetheless, in the press release the EPO has expressed a certain optimism that the GFCC will indeed render their ruling within the timeframe alluded to by the GFCC judge last November. Even more than that, the EPO president and representatives from the EU Member States have seized this opportunity to stress the importance of the UP package to competitiveness, growth and innovation in Europe, and advocated a speedy implementation of the UP package. In addition, they have made it clear that the EPO would, from a logistic viewpoint, be ready to grant the first European patent with unitary effect, and that they are quite confident that all the remaining necessary steps can be taken for the UP package to be operational by the end of 2020.

However, it seems remarkable that absolutely no mention was made of the situation in the UK, where Brexit has created a significant amount of uncertainty as far as concerns – among other things – the future participation of the UK in the UP project.

On paper, the UK is still envisaged to play a prominent role in it, London having been chosen from the start as the location of one of the three central divisions of the UP Court. After the Brexit referendum vote, despite the then Prime Minister Theresa May’s declared intention to bring an end to the ECJ’s jurisdiction, the government actually committed to continuing with the process for the UK’s ratification of the UPC Agreement, so much so that Parliament passed all the necessary legislation and Mr Johnson himself (in his role, at the time, of Foreign Secretary) signed the instrument of ratification in April 2018. Yet, a UK government’s press release from earlier this month seems to suggest that the UK government may soon review their earlier decision to commit to the UPC project.

It is perhaps the case that the EPO president and his team have chosen to send out a hopeful message at the start of a new decade. However, their decision to close an eye on the proverbial elephant in the room risks dampening the optimism they’ve been trying to spread, as not all parties involved will be entirely convinced that 2020 will see the first European patent granted with unitary effect.

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

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