Practical Implications of the Unitary Patent System in Europe

Abstract

Kilburn & Strode LLP, 20 Red Lion Street, London, WC1R 4PJ, UK *Author for correspondence: E-mail: nbassil@kilburnstrode.com The procedures for the implementation of the so-called ‘unitary patent’ in Europe are now gathering pace. The Preparatory Committee of the Unified Patent Court (UPC) has started the process for setting up the court. Similarly, the EPO has set up a Select Committee on the unitary patent to oversee its introduction as part of the operations of the EPO. The relevant legislation governing the new court and patent (the ‘EU Patent Package’) comprises the Unitary patent Regulation (EU) no. 1257/2012, the Translation Arrangements Regulation (EU) no. 1260/2012, and the Agreement on a UPC. This article seeks to provide an overview of developments and the key features of the new system. Some practical considerations are also set out, as all parties familiar with the current legal landscape in Europe will need to take account of these changes. Recent key events The final step in the legislative process occurred on 11 December 2012 when the European Parliament voted to approve the EU Patent Package. The vote in the European Parliament followed the announcement by the European Council on 10 December 2012 of the political endorsement of the proposals. Subsequently, the CJEU issued its judgment of 16 April 2013 in the joined cases [1,2]. The judgment followed the Advocate General’s opinion of 11 December 2012 and the CJEU rejected the arguments filed by Spain and Italy. The Spanish and Italian governments filed submissions that the EU Council’s decision to use the ‘enhanced cooperation’ procedure to bring forward the EU Patent Package was invalid under EU law. The enhanced cooperation procedure enables groups of EU member states to progress with certain legislative developments, even if not all member states wish to take part. However, Spain has also now launched two separate legal challenges in the CJEU [3,4]. There is a general expectation that since the CJEU has already issued one ruling in this matter that further challenges should also similarly fail. The UPC Agreement is an international treaty outside the EU. The UPC Agreement was signed on 19 February 2013 by 24 EU member states. Bulgaria subsequently signed the Agreement on 5 March 2013. Poland and Spain still have the option to accede to the Agreement at a later date. Now that the Agreement has been signed, the ratification process can begin. Once the Agreement is ratified it will come into effect. The Agreement will enter into force on 1 January 2014, after 13 states (including Germany, France and the