Unified Patent Court may still go ahead

Posted in European Patents, UK Intellectual Property on by Admin

Baroness Neville Rolfe, the British Minister of State for Energy and Intellectual Property, announced on Monday that the UK intends to proceed with preparations for ratification of the Unified Patent Court Agreement (UPCA).

The UPCA is an agreement between the majority of European Union member states to form a Unified Patent Court (UPC) with exclusive jurisdiction for matters including the infringement and revocation of the soon-to-be-introduced European unitary patents. Unitary patents will provide a single intellectual property right across many, but not all, EU member states, in contrast to current European patents which convert to a bundle of separate national patents on validation after grant. The UPC, if it does come into existence, would also have jurisdiction over other European patents, including existing European patents, although a transitional period of at least 7 years is planned during which time patent owners would be able to opt European patents out of the UPC system.

A central division of the Court dealing with chemical and pharmaceutical matters is planned for London, while central divisions in Munich and Paris would focus respectively on mechanical engineering and any remaining technologies.

The UPC project has already been beset by delays, including formal legal objections by Spain and Italy. The project had finally looked set to go ahead last year when the Court of Justice of the European Union threw out Spain’s final legal challenges and with the UK unveiling the Aldgate Tower location of the London central division of the Court. However, the result of the UK’s referendum on membership of the EU led experts to question whether the project could proceed in its original form, if at all. This is in part because the UPCA must be ratified by a minimum of 13 countries, including France, Germany and the UK, before it can come into effect. If the UK fails to ratify, there is doubt that the Court would come into existence even in the remaining member states.

Proponents of the new system will therefore be buoyed by the UK government’s announcement which indicates that the Court may yet go ahead as planned, although significant uncertainty remains as to what the statement really means in practice. There are both ongoing political and legal challenges to the Brexit process in the UK and much could change in the minimum of two years that will be required to leave the EU.

Michael Ford

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