The European Unified Patent Court and Unitary Patent Probably in 2019 or 2020

The Unified Patent Court (UPC) may open to receive cases in 2019 and probably will open no later than 2020. The EPO will begin granting European patents with unitary effect (Unitary Patent or UP) on the same date. It appears very likely that the United Kingdom will participate in the UPC from the outset, but its participation in Unitary Patents appears less likely, depending on its negotiations to leave the European Union (Brexit).

The principal delays are litigation in Germany and the need for a period of six to eight months to organize the court before it opens to receive cases, and most importantly to employ judges and staff.

The minimum necessary ratifications of the Unified Patent Court Agreement (UPCA) are complete, except for Germany. France ratified in 2014. The UK deposited its ratification on April 26, 2018, removing fears that a failure by the UK would require renegotiation of the UPCA. Fourteen other states have also ratified.

Completion of German ratification of the UPCA has been held up by a complaint filed at the German Constitutional Court, challenging German ratification and participation in the UPC on several grounds of German and EU law. The Court has placed the case on its calendar for decision in 2018.

Most German legal experts doubt that Constitutional Court will bar ratification. It seems most likely that its decision will free Germany to complete ratification, but the decision may require some further legislative action.

A Protocol on Provisional Application (PPA) of the UPCA would permit creation of the UPC organisation and give it legal personality six to eight months before the UPC opens to receive cases. The Administrative Committee, the Budget Committee and the Advisory Committee will be established at the start of provisional application and will then take over the responsibility of the preparations from the Preparatory Committee.

Approvals of the PPA have been completed by France, the UK and eight other states. The German parliament has approved the PPA but filing of that approval has been delayed by the Constitutional Court case. Timely approval by at least the two other states required for implementation appears likely.

The UK having ratified the UPCA while an EU member state, it appears likely it will be able to stay in the UPC. However, because EU regulations will create the Unitary Patent and its translation regime, it appears the UK would need to negotiate with the EU to participate in the UP after leaving the EU.

Please see our revised and updated UP and UPC webpages for further information.