Facts about the new unitary patent and the new patent court
The UK communicated in late February 2020 that it will not participate in the UP/UPC system.
The German Federal Constitutional Court has ruled on 20th March 2020 that the German Parliament’s approval of the Agreement on a Unified Patent Court is void, as it has not been approved by the Parliament with the required two-thirds majority. The Court dismissed the complaint with regard to the assertion that the agreement on the UPC violates fundamental democratic rights and the principle of separation of powers. The road for German’s participation in the UP/UPC project seems to be paved, insofar as the required two-thirds majority in favour of the legislation presumably exists.
The most significant hurdle for the UP/UPC project seems to be the fact that the UK will not participate (which might in principle have been possible despite of Brexit). In a statement on 27 February, a spokesperson for 10 Downing Street said: “The UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and is bound by the CJEU is clearly inconsistent with our objective of becoming an independent self-governing nation.” As the agreement on the UPC lays down that the Central Division of the Court will be partially based in London, the agreement presumably has to be reopened and ratified anew in the participating States. For the moment, a likely scenario is that the UP/UPC project will continue with Germany on board, but without the UK, albeit only after legislative renegotiation.— In the future European patent court system, enterprises, universities and inventors will be given the possibility of representation by European Patent Attorneys having obtained an additional qualification. Users of the Unified Patent Court may thereby benefit from having their case including its scientific aspects presented to the Court by a technically qualified patent attorney. At Inspicos we are fully aware that many future court disputes will require teams of patent attorneys and litigation lawyers, but at the same time we feel compelled to be qualified to represent before the Court in order to serve the needs of our clients. Therefore, so far 12 of our European Patent Attorneys have completed a one-year diploma course at the University of Strasbourg in France which at present is believed to fulfill the future requirements for the right to representation before the Unified Patent Court. We trust that this additional qualification will not only enable us to represent our clients before the Court, but that it will also allow us to provide counselling in relation to contentious matters at the highest level under the future European regime. A summary of the new European patent system is provided below.
- The unitary patent will be applied for and granted by the EPO – just as European patents are today. However, in contrast to current European patents, the unitary patent does not need to be registered in each country in the agreement.
- When the system is fully implemented, unitary patents will cover all 28 EU countries. Spain and Poland have – however – chosen to remain outside the new system for now.
- As the EPO continues to be responsible for grant of European patents, there will be no change in what can be patented – the new system only concerns what happens post-grant. Software as such, business methods and human embryos can therefore still not be patented in Europe.
- When a European application is approved for grant, the applicant must choose between a. a unitary patent, in which the patent enters into force in all member states, or b. putting it into force in each country, by “validating” it in various administrative processes.
- The new unitary patents should be seen as further options for a patentee to obtain patent protection – they are supplements to national patents and the existing European patents, which one will still be able to apply for and obtain.
- Existing, granted European patents cannot be converted to unitary patents, but – for those European patent applications which are pending when the new system enters into force – one will be able to choose between giving these granted patents unitary character, and validating them as per the current European patents.
- The new Unified Patent Court (UPC) will have jurisdiction in all cases concerning the new unitary patents. Decisions from the UPC have immediate effect in all participating countries. As far as the existing and future European patents are concerned, these will also be litigated before the new court, unless the patentee requests that they are to be litigated before the existing national courts (a so-called “opt-out”). There is, however, a deadline for “opting-out” – initially a period of seven years from the new system coming into effect. An opt-out will be valid for the entire lifetime of the patent, unless the patentee changes their mind and “opts-in”.
- The current renewal fees, which the patentee has to pay in each individual country, will be replaced in the case of unitary patents by a central renewal fee. The size of this fee corresponds to the total sum of the renewal fees currently paid for the four most frequently validated countries by the holders of European patents (Germany, France, UK, the Netherlands).
- The new system will enter into force when at least 13 countries have ratified, including Germany, the UK and France. At the present time (March 2017) 12 countries have ratified, namely Austria, Denmark, Bulgaria, Finland, France, Italy, Luxembourg, Malta, The Netherlands, Portugal and Sweden. It is currently expected that the new system enters into force towards the end of 2017.