The unitary patent and UPC are within touching distance of going live. However, recent developments in the UK and Germany potentially put the whole system at risk. So, simply put, where are we now?

When the unitary patent system first came to IPcopy’s attention we were at a conference in Brussels in December 2012 where the keynote speaker from the European Commission suggested that the system would be up and running in just over a year, i.e. Spring 2014. The reality and difficulties of setting up the unified patent court meant that the “go live” date consistently slipped further and further along. Back in August 2013 we had adjusted the expected go live date to “late 2015” and last May, a start date somewhere within 2017 was expected.

13 member states including the UK, France and Germany need to ratify the UPC Agreement for the system to get off the ground and we are now waiting on only the UK and Germany to complete their ratification procedures to meet the required number of member states. So until recently it looked like, after 50 odd years of on-off efforts to create a pan-European patent court, that the unitary patent and Unified Patent Court were going to make it.

And then two things happened, the Brexit referendum result and the challenge to the unitary patent system in the Federal Constitutional Court in Germany. As recently reported on IPcopy the German court was planning on taking observations on the case until the end of October 2017. If the decision was favourable to the unitary patent system then this may have allowed progress by mid 2018. Last week however came news that the court was extending the deadline for observations until the end of December 2017.

Many commentators online seem to have assumed, at least in public, that the German court challenge would eventually turn out OK and the UPC would eventually come into being. But, is this likely and how might the German case impact on the timescales for the development of the UPC?

A recent podcast from McDermott Will & Emery took a look at the German court challenge in more detail and it looks like we could be in for a bit of a wait. The podcast suggested that following the end of the observations phase (Note: the podcast was recorded before the observations period was pushed to 31 December 2017) there might be a 5-6 month wait for an initial decision on the allowability of the case. If the case was allowed then a hearing might be expected around 6 months later. Given the nature of some of the issues within the complaint (namely those that relate to EU law) a referral to the CJEU could happen which would delay matters for potentially another 2 years.

The German complaint runs apparently to some 170 pages so this isn’t a trivial case to deal with. According to the podcast, the German court does not usually invite observations and the fact that they have here suggests that the case, on the fact of it, has merit.

So, we’re looking at a likely 12 month delay from the end of this year and possibly a further 2 year delay on top if there’s a referral to the CJEU. This would, in the worst case scenario, take us to the end of 2020 before German ratification of the UPC Agreement could resume which brings another issue into play – Brexit.

The Brexit negotiations so far have been less than optimal. However, as things stand the UK is due to leave the EU in March 2019 which would mean that, if the German challenge drags on, we wouldn’t even be able to have some time in the UPC before Brexit occurs. A unitary patent system without the UK would be less attractive which would presumably put the whole endeavour at risk.

The UK’s long term intentions for the UPC are a little hazy. The role of the CJEU in the UPC would seem to conflict with the government’s desire to leave the CJEU behind post Brexit. Additionally, amending the UPC Agreement to allow a non-EU member state to participate would, to my mind, not be straightforward and might require its own CJEU referral (that noise you can hear is the irony klaxon going off).

So, the progress of the unitary patent system seems to be uncertain. The current troubles may eventually be seen as the last wrinkle that was overcome before the Court opened its doors but they might also signal a more fundamental issue with the implementation of the Court and possibly, in a worst case scenario, the beginning of the end.

While all this plays out, IPcopy will continue to bring you news of any progress from the UK or Germany. The UK continues to inch forwards with ratification with the recent approval of the Scottish Immunities and Privileges Order in Scotland and in Westminster the members of the committee that will exam the Westminster Immunities and Privileges Order were appointed this week.

Mark Richardson 1 November 2017