Abstract
Since its launching, the Unified Patent Court (UPC) project has faced obstacles and scepticism from some EU Member States. When the United Kingdom ratified the UPC Agreement in 2018, it seemed that there was nothing left but to wait for a positive decision of the Federal Constitutional Court of Germany on the ratification by that country, so that finally the UPC could start its activity. Nevertheless, 2020 brought events that make one look back and reflect on the project itself. The UK withdrew its ratification and the Federal Constitutional Court ruled the German ratification process of the UPC Agreement unconstitutional. Then two new complaints were submitted to the Federal Constitutional Court, which this summer finally gave the green light to the ratification, but it seems the UPC project has already split Europe. The question that arises is whether, in the context of last year’s events and the fracture between the states, the unitary patent system can still be seen as unifying the European patent litigation system. This article discusses the examples of Poland, Hungary and the UK, as countries that refuse to participate in the system due to its interference in their internal legal systems and sovereignty, and other examples of fractures visible in the UPC.
Highlights
After many years of debate, the acceptance of the patent package1 eight years ago was perceived as an important step forward in unifying the European patent system
When the United Kingdom ratified the Unified Patent Court (UPC) Agreement in 2018, it seemed that there was nothing left but to wait for a positive decision of the Federal Constitutional Court of Germany on the ratification by that country, so that the UPC could start its activity
Two new complaints were submitted to the Federal Constitutional Court, which this summer gave the green light to the ratification, but it seems the UPC project has already split Europe
Summary
After many years of debate, the acceptance of the patent package eight years ago was perceived as an important step forward in unifying the European patent system. Enthusiastically welcomed by some as a success of the Member States (MSs) and a big opportunity for the European patent system, the project did receive some criticism. This mostly addressed the construction of the newly proposed Unified Patent Court (UPC) and its system. In July, the UK – one of the three countries whose ratification is required for the Unified Patent Court Agreement (UPCA) to come into force – officially withdrew from the agreement Last year, both lawyers and IP professionals pondered on the future and viability of the UPC. This article attempts to clarify this question based on the examples of Hungary, Poland and the UK – states that chose not to participate on grounds of sovereignty – and other examples of fractures visible in the UPC
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