The unitary patent and the unified patent court almost ready to go

10 April 2017

European governments are not that excited about having a non-EU member state be part of the Unitary Patent and the Unified Patent Court system.

10 April 2017

Despite the political events you must have lately been hearing of, United Kingdom expects to complete its UPC ratification process by the end of April. The British Government is confident that UK´s participation would be positive for businesses and inventors, and wants to stay part of the Agreement –and, coincidentally, keep the UPC´s central division in London-.

However, on the continent, European governments are not that excited about having a non-EU member state be part of the Unitary Patent and the Unified Patent Court system. Brexit terms, including IP matters such as this, are currently on the negotiating table and might stay there for a while at the expense of even bigger and more complex matters –especially with respect to European Union institutions such as the Court of Justice-.

Even so, the opening date will still probably be December 1st 2017, with the Provisional Application Phase beginning in May. This phase includes the so called “sunrise period”, within which European patent applicants and owners will have to decide whether to opt out of the new system or remain within the same, as well as establish their strategies and policies concerning future patenting.

Interestingly enough, while UK puts spokes in its own wheels, Italy has already deposited its instrument of ratification of the Agreement on a Unified Patent Court last February and, as we know, has wisely played its cards so that the UPC may have one of its local divisions in Milan.

In the same direction, we begin to see changes within Spanish politics. On March 7th 2017, the Spanish Congress passed a motion calling on the government to join the UP and UPC system, suggesting to have the London central division relocated in Spain, because dreaming is free of charge. However, said motion is non-binding and the governing party does not seem to be willing to change its position in the near future.

The driving force behind the whole project (with its capital in Berlin) has already passed two pieces of legislation in the Bundestag (lower house) and all signs indicate that Bundesrat (upper house) will not even need to debate them in order to give them their final approval.

As we all know at this point, 13 states (including the three big ones) must have ratified the UPC Agreement, and consented to be bound by the Protocol, for this to come into force. To date, only seven countries fulfil this requirement: France, the Netherlands, Denmark, Finland, Luxembourg, Italy and Sweden. Thus, we are still waiting for four more states to either say “yes” to the Agreement or the Protocol, or even both.

After many years of discussions, 2017 looks like the year of the Unitary Patent and the Unified Patent Court, even if our Shakespearean friends seem committed to keeping the dramatic tension until the very end.

Alfonso Sabán

Lawyer. International Relations Departments. Trademarks Department.


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