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The unitary patent project and the Unified Patent Court have been limping along in recent years ever since the result of the UK referendum on EU membership and the filing of the German constitutional court challenge against the UPC legislation.
This blog has been less than positive (1, 2) about the prospect of either the UK staying in the system or even the outlook for the project as a whole and yesterday it became clear that, contrary to previous slightly more positive murmurings from the UK Government, the UK has now decided it will not be moving forward in the Unified Patent Court system. Despite the lack of an official announcement the news seemed to pop up online and in IPcopy’s messages from a number of different sources yesterday and IAM Magazine later reported that the Prime Minister’s Office confirmed that the UK would not be participating in the UPC system. (more…)
The unitary patent system is aiming to create a European patent registration and litigation system. To bring the whole system into being, 13 EU member states, including France, Germany and the UK, need to ratify the UPC agreement and currently 16 member states (including France, the UK but crucially not Germany) have done so.
For some time, the unitary patent project has been stalled because an ongoing legal challenge in Germany has prevented Germany’s ratification process from being completed. In addition to this, the fallout from the UK’s Brexit vote has also cast a sense of uncertainty over the planned system because the unitary patent system is only, in its current form, open to EU member states to join. The UK’s expected departure from the EU therefore casts some doubt on whether the system will even take place.
In the face of the above two challenges however the UPC Preparatory Committee has continued to make technical and operational preparations in anticipation of a positive result from the German Constitutional Court.
Recently however the German Federal Ministry of Justice made a statement to the German Parliament indicating that an examination of the UK’s exit from the EU on the proposed unitary patent system will need to take place before ratification can occur. (more…)
Brexit, the UK Government’s real time demonstration of how not to conduct an international negotiation, rumbles on. The last two weeks have seen a “collective” stance on a Brexit plan thrashed out at Chequers, the subsequent resignations of David Davis and Boris Johnson who it seems weren’t quite ready to be part of May’s Collective, the visit of the US President who apparently suggested that the UK should sue the EU and, perhaps most tellingly of all, a sign on a broken toilet door in the Commons which not unreasonably asked “If we can’t fix a toilet in six weeks, what are our chances of negotiating Brexit in eight months? Just asking.” (I’m not joking. Picture at the bottom of this post!)
As well as all of the above and in amongst the usual chaos of knife edge votes in the Commons and a former Cabinet Minister asking for a second Referendum (surely if that happens we need best of three?), the UK Government published its White Paper on “The Future Relationship Between the United Kingdom and the European Union”. The White Paper mentions a little bit about IP so let’s dive in. (more…)
The CIPA seminar series relating to the unitary patent and Unified Patent Court resumed last week with the session “Unitary Patent and Unified Patent Court for Attorneys”. This session, which was presented by Julia Gwilt, took a look at the ways in which the unitary patent system may impact the way that European Patent Attorneys will need to work.
The session provided a quick overview of the unitary patent system and then took a closer look at the procedure before the EPO (when requesting unitary effect) and the procedure before the Unified Patent Court (when requesting or withdrawing an opt-out).
We won’t cover the basics of the unitary patent system again here and readers wanting a quick recap of the system are invited to check out IPcopy’s report on the first CIPA seminar on this subject which can be found here. (more…)
On 26 April 2018, World IP Day, the UK surprised more than a few people by ratifying the UPC Agreement and in the process taking the total number of countries who have ratified the agreement to 16. The UK press release that accompanied this announcement stated “Our ratification brings the international court one step closer to reality”.
Since the ratification process only requires 13 member states, including France, Germany and the UK, to ratify then it might appear to some that German ratification is the only remaining obstacle to the unitary patent system going live.
However, IPcopy suggests that it is still too soon to be able to say if and when the system will come into force. (more…)
According to the website of the Council of the European Union (and just about every other official IP channel), the UK deposited its instrument of ratification (on 26 April 2018) to become the 16th country to complete its ratification formalities. The UK joins Latvia, Lithuania, Estonia, Italy, the Netherlands, Bulgaria, Finland, Portugal, Luxembourg, Malta, Denmark, Belgium, Sweden, France and Austria as one of the sixteen countries who have completed their ratification processes.
The unitary patent system requires 13 countries to ratify, including the UK, France and Germany. However, the German Constitutional Court challenge has thrown the timescale and the long term future of the unitary patent system into doubt.
There are now enough countries to have ratified the unified patent court agreement that the system will come into effect if Germany completes its own ratification procedures and sufficient approvals to the PPA are obtained.
Mark Richardson 27 April 2018
The UK has now completed all its legislative steps with respect to the UPC Agreement and UPC’s Protocol on Privileges and Immunities and is in a position to ratify the UPC Agreement. However, the potential timescale of the constitutional court challenge in Germany and the remaining ratification/implementation period means, in IPcopy’s view, that the UPC system will not come into force, at least in its current configuration. (more…)
According to the website of the Council of the European Union, Latvia has now deposited its instrument of ratification (on 11 January 2018) to become the 15th country to complete its ratification formalities. Latvia joins Lithuania, Estonia, Italy, the Netherlands, Bulgaria, Finland, Portugal, Luxembourg, Malta, Denmark, Belgium, Sweden, France and Austria as one of the fifteen countries who have completed their ratification processes.
The unitary patent system requires 13 countries to ratify, including the UK, France and Germany. Brexit in the UK and a court challenge in the German Federal Constitutional Court (GFCC) has put the brakes on the progress of the unitary patent system. (more…)
Just before Christmas, the Preparatory Committee for the Unified Patent Court (UPC) published an online article, looking ahead into this new year. Optimistic as usual, the committee expressed to be “hopeful the New Year will bring closure to [its] endeavours and the Unified Patent Court will become a reality”. Some words were spent on the delay caused by the challenges to the German ratification of the Agreement at the German Federal Constitutional Court (GFCC), but most of the article was meant to inform the future users of the unified patent system about the provisional application of the Agreement in the months before the Court will actually start. The article included no words on Brexit and the as yet unclear future relation between the EU and the UK. (more…)
With the ongoing UPC related court case in Germany and the uncertainties arising due to Brexit, the preparations for the unitary patent system have, for the moment at least, something of the feel of a dead rubber match in a sporting competition.
Perhaps, once (if?) the German case allows German ratification preparations to continue and the UK has managed to make its intentions clear, the project will get up and running again. Until then any developments have, to my mind at least, the feel of going through the motions.
It was against this backdrop that the House of Lords Grand Committee met on 6 December 2017 to consider the draft Unified Patent Court (Immunities and Privileges) Order 2017. The approval of this Order by the House of Lords and its subsequent approval (along with the corresponding Scottish Order) by the Privy Council are the last pieces of the UK’s ratification process that need to be completed before the UK can formally ratify the UPC Agreement. (more…)