The Unified Patent Court… what next?



Chris Excell, Head of IP & Patents

Dovetailing with a previous article on the EUIPO (and its choice of location) it is only right to comment on the “other side” of the Intellectual Property world; Patents, and the Unified Patent Court.

A brief history on this, The Unified Patent Court agreement was signed on 19 February 2013 in Brussels by 25 Member States (except Spain, Poland, and Croatia). It is due to be implemented by the end of 2021. Its main purpose is to create an international court to deal with the infringement and validity of both Unitary Patents and European Patents. Its rulings will apply in all Member States that have ratified the Agreement on a Unified Patent Court (UPC Agreement).

We will explore the ratification process in more detail later. We could talk about every member state’s ratification progress, however we will focus purely on the UK for this discussion. With that being said, it is important to note the three mandatory ratifiers were/are the UK, France and Germany. Whilst no longer in the EU, the UK did ratify the agreement at one point in time…

The UK ratified the Agreement on a Unified Patent Court in April 2018, despite the UK’s plans to leave the EU. This was viewed as surprising because the consensus was that non-EU members could not participate in the new UPC system. Even more surprising that the UK ratified the UPC after the national referendum on Brexit (which is a topic that needs more than one line to discuss). We would however welcome your comments on this point!!

Fast forward to July 2020, The UK officially confirms it is pulling out of the UPC, it could be argued that this never should have got this far given the Brexit implications, however we now know the stance the UK has taken.

After speaking with many IP specialists across Europe, there seems to be a split consensus about the future of the UPC. There are some who are unsure if the UPC can still happen, and there are those of the mindset that even with the UK pulling out of the agreement, the UPC can and will go ahead. Which is quite interesting because of the three mandatory ratifiers needed, as previously said, only France and Germany remain part of the EU. (There is also the issue of Germany and their ratification being overturn by the Federal Constitutional Court, however a new draft bill has been submitted which looks like it will finally ratify the UPC)

Arguably, there is no precedent that we can draw on to see how this will play out, but we do have existing International Treaty laws. The question is where do we go from here, as opposed to where does this leave the UPC?

If the UPC can’t go ahead due to the ratification process, then the obvious decision would be to leave things the way they were pre the UPC agreement- yes, this will be seen as counter intuitive, especially considering the amount of time and resources invested to the UPC: 7 years and counting. However, it would be the simplest thing to do, considering the current situation and the potentially conflicting interests of the remaining member states. If this were to happen, much of the existing framework could be ‘reused’ and potentially contentious areas re-negotiated to make the terms more acceptable, potentially drawing in the three original detractors (Spain, Poland and Croatia).

However, what is more likely, will be a new agreement which will be less rigid and allow for more flexibility on entry / decisions. If the UPC’s ultimate mantra is to create a global court, then surely this must be lived up to? The current agreement is a comprehensive one, and yes, it is for the purpose of European patents. The uncertainty around the current state of the UPC is a real topic of interest with material consequences depending on what happens next. 

The last alternative, and this is an extreme idea, would be the formation of a new patent court. This is a subject that we will discuss in a future article, however in short – this could be an exciting proposal that would have an impact for generations to come, if, and it is a big if, a new unified patent court idea was to be explored. Failing this, it is difficult to see a future for the UPC in its current form.

It must be stressed that the above thoughts are purely hypothetical, we do not currently know how Britain leaving the UPC and the EU will impact on the UPC and whether it will prevent it going ahead.

How can this go ahead, will it go ahead, will it be renegotiated, will there be an alternative solution? Whatever happens next, is going to be interesting, the developments and ramifications on the Intellectual Property world are not insignificant.

Chris is a Senior Consultant at Fides Search and is Head of IP and Patents. To find out more get in touch with Chris:

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