Back in the summer last year the UKIPO ran a consultation looking at the implementation of the unitary patent and unified patent court into UK law. Although the UKIPO is still processing the comments, a summary of the various responses received has been published (see here).

Only twenty responses were received from a mixture of business types, lawyers, patent attorneys. A few points of interest from the responses are noted below:

• There were concerns over the way that the transitional provisions of Article 83 of the UPC Agreement were included in the draft legislation. Additionally, there were concerns regarding the clarity of Article 83 itself. Although this latter point was outside the scope of the UK consultation it has been fed back to the Legal Working Group of the Preparatory Committee.
• On the issue of double patenting, the respondents were divided. In the pro-double patenting group it was felt that allowing double patenting would provide a safety net in case the UP was revoked, would provide an alternative and potentially cheaper litigation option and would also address the issue of portfolio pruning (by allowing a UP to be dropped and a UK to be maintained to provide protection in the UK). In the anti-double patenting group it was felt that this would increase litigation with a risk of “double recovery” of damages.
• The proposed inclusion of Article 27(c) of the UPC Agreement into the draft legislation was supported by those representing the plant breeding industry. However, many respondents felt that the UPC Agreement lacked clarity about the meaning of Article 27(k) within the UPC Agreement and it was felt that there was a risk that this provision could be interpreted in such a way as to make software patents unenforceable.
• On the issue of the location of the UPC in the UK there was good support for a local division in London and some support for a local division in Scotland and also for a “roving” local division that could move around the country.

Mark Richardson 31 March 2015