The UK has become the 16th member state to ratify the Unified Patent Court (UPC) Agreement. The UPC will become a new pan-European court where, for the first time, European patents can be enforced and revoked across multiple European states in a single sitting, as discussed in more detail here. The UK Government confirmed that it planned to continue with this new international agreement shortly after the Brexit referendum in 2016 so remains a keen advocate for the UPC.
The UPC Agreement now requires ratification by Germany in order to trigger the start of the new system. Other states are likely to continue ratifying the agreement as the system grows over the following years. In total 25 states have signed up in principle to the UPC Agreement, as listed here, although it is unlikely that they will all have ratified the Agreement before the system first starts.
Germany is currently facing a constitutional challenge to its participation in the UPC. This challenge was filed at the last minute so is still making its way through the German constitutional court as we reported last year. As the German parliament has already approved all the required legislation, permission from the constitutional court will be the last step before German ratification can be completed. It is unknown how long the constitutional court will consider the pending challenge, but the court currently includes this challenge on its list of cases to decide in 2018. As a result, the earliest realistic start date for the UPC is the end of 2018 or more likely early to mid-2019.
Once in place, the UPC will provide significant new options for both patentees and those seeking to challenge patent validity. The overriding intention of the UPC is to provide a cost-effective and efficient mechanism for patents to be enforced or revoked across the whole territory of the UPC states in a single action, with the aim of reducing costs and providing earlier commercial certainty across Europe for businesses.
The UPC’s jurisdiction will extend to all patents granted by the EPO, unless an opt-out is filed. Once German ratification is complete, a 3-4 month “sunrise period” will precede the opening of the UPC, which will be the best time to file opt-outs as discussed here.
The arrival of the UPC will also trigger the availability of the new unitary patent – a single patent available from the EPO that automatically covers all the states who have ratified the UPC Agreement. These new patents will provide a range of potential savings as discussed here. The EPO may offer the chance to select the unitary patent shortly before the UPC arrives, although the details of this system have yet to be officially confirmed.
The UPC is based on an international agreement, but does involve aspects of EU law. Therefore, the UK’s final status within the UPC framework will be one of the points clarified as part of the on-going Brexit negotiations, with various options available for the UK to remain in the UPC after Brexit as discussed here.
The UK joins the existing ratified states: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal and Sweden. Once Germany addresses the constitutional challenge and joins this group, we will have only a few months before the biggest change in the European patent system for a generation.