The always entertaining and informative Wragge Lawrence Graham & Co’s annual patents seminar was held last week and included a round-up of recent developments relating to the unitary patent and UPC.

• Ratification. The number of states that have ratified the UPC is now 9 (Finland being the most recent country to complete the process). There is no recent news from Ireland, Hungary, Czech Republic, Greece or Cyprus on the state of their ratification process. Bulgaria and Slovakia have signalled that they are going to ratify later once the system is up and running.
• Brexit. The possibility of the UK voting to leave the EU in the upcoming referendum has had some people wondering how that will impact the unitary patent system. It was noted that Article 89 of the UPC Agreement does not actually mention the UK but instead only references the three Member States in which the highest number of EP patents had effect in the year before the UPCA was signed. If the UK were to leave then the process would just refocus on the country that is currently in fourth place.
• Brexit, part deux. It was however noted that Article 7(2) UPCA refers explicitly to London in reference to the central division of the UPC. So the UK’s absence from the EU would be an issue for this part of the UPC agreement and amendment and, possibly, re-ratification would be required to address this.
• Court fees. The court fees arrangement is still to be finalised with a final draft likely next month some time. WLG noted that they had responded to the recent consultation on UPC court fees by suggesting some additional behavioural actions that could result in a discount in fees (the example given being when parties agree to limit the amount of prior art under consideration).
• A comparison of court fees in the UK, Germany and as proposed under the UPC was shown which highlighted that the value of a claim will become more relevant to UK claimants under the UPC than it is now (UK court fees appear to be approx. £14,000 regardless of the value of the action).
• The impact of the UPC and the proposed court fees on SMEs was also mentioned during the session relating to WLG’s UPC survey. It was noted that as far as SMEs are concerned there are a number of features that may help them. These features include a tightly controlled procedure with a hearing lasting only a day (compared to 2 days in the IPEC for complex cases) and more flexible cost caps than at IPEC. It was also highlighted that court fees in Germany are higher than those being proposed for the UPC and so as far as SMEs in Germany are concerned the system may not seem as expensive.
• UK implementation.  The UK government has recently published a draft Statutory Instrument to make changes to the UK Patents Act in order to bring the unitary patent system into effect in the UK. The draft SI can be seen here and the government’s response to the UP/UPC consultation is here. The draft SI introduces two new exceptions to infringement (relating to plant breeders rights and a computer software related exclusion).
• Post seminar thoughts. The manner in which these exemptions have been incorporated into the draft SI (and therefore into the Patents Act which it is enacted) is interesting (and discussed in some length in the comments to this IPKat post). As noted in the final UK Impact Assessment, the UPC Agreement and unitary patent regulation only require the exemptions to apply to unitary patents and EP(UK) patents that have not been opted out. It does not need to be applied to opted-out EP(UK)s and GB national patents.
• As discussed in the Impact Assessment, the UK approach is to apply the plant breeders section to all European patents and GB patents but to only apply the software exception to European patents. This has been done because the software exception is new to patent law and its scope is uncertain until tested in court. However, a side effect of this approach (as highlighted in the IPKat post) is that the UK will not apparently be compliant with Article 64(1) EPC since a European patent will not confer the same rights as would be conferred by a national patent in the UK.

Mark Richardson 28 January 2016