Blog

Legal Alert: EU Unified Patent Court and Unitary Patent Update

Authors

One of two issues delaying the start of the EU Unified Patent Court and Unitary Patent system was resolved on February 27, when a spokesperson for the United Kingdom government announced that "the UK will not be seeking involvement in the UP/UPC system." The spokesperson added, "Participating in a court that applies EU law and bound by the CJEU (Court of Justice of the European Union) is inconsistent with our aims of becoming an independent, self-governing nation."

The other reason for delay could be resolved within the next two to three months. That is the expected decision of the German Constitutional Court on whether to accept a Complaint by an individual seeking to block German ratification of the UPC Agreement. Only a very small percentage of such individual Complaints are accepted by the court; however, the court appears to be giving this Complaint serious and full consideration.

As a result of Brexit and the UK announcement, and assuming the remaining EU participating states remain dedicated to creating the new system, those states will need to revise the provisions of the UPC Agreement relating to the UK and specifying London as the location of a branch of the UPC Central Division dealing with medicines.

According to the most recent timetable of the UPC Preparatory Committee, the new court could open approximately seven months after full ratification of the UPC Agreement. That will require resolution of the issues raised by the UK withdrawal and any issues raised by the German court. If no serious issues are raised by the German court, and the issues can be resolved by one or more agreements that do not require a new round of ratification, it appears possible that the UPC and UP system could begin operation in 2021. If a diplomatic conference followed by ratification by participating states is required, it appears likely that the new system will not begin operation before 2022.

The date when the European Patent Office can begin granting Unitary Patents will be the opening date of the UPC. The EPO has declared it is ready now.

We will provide an update on these issues after the German court decision.

For more information on the Unitary Patent and Unified Patent Court system, visit our updated website: https://www.fr.com/services/patent-law/unitary-patent/.

Authors: John Pegram; Herbert Kunz, Ph.D.; John Conroy, Ph.D.

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.