In 2012, Member States and
the European Parliament
agreed on the "patent package" - a legislative
initiative consisting of two Regulations and an international Agreement, laying grounds for the creation of unitary patent protection in the EU.
The patent package implements enhanced cooperation between 25 Member States (all Member States except Italy and Spain).
Following the adoption of the two Regulations in December 2012, the contracting Member States will proceed with the signature and ratification of the Agreement on a Unified Patent Court - the third and last component of the "patent package" setting up a single and specialised patent jurisdiction.
Once the Agreement and the Regulations enter into force, it will be possible to obtain a European patent with unitary effect - a legal title ensuring uniform protection for an invention across 25 Member States on a one-stop shop basis, providing huge cost advantages and reducing administrative burdens.
On 19 February 2013 the representatives of 24 EU governments met in Brussels to sign the Unified Patent Court (UPC) Agreement (Poland reconsidered its position and declined to sign) and since then, Austria, France, Sweden, Belgium, Denmark, Malta, Luxembourg and Portugal have ratified. Only five more ratifications are required to bring the system into effect, including the UK and Germany. It will take effect four months after the necessary thirteen countries including UK and Germany have ratified. The UK parliament has authorised ratification, however the UK will not proceed until its domestic law has been further amended by statutory instrument, and that work is in progress. It is understood that Germany is proposing to ratify when the Unitary Patent Court is ready for operation. This is not expected to be until 2016 at the earliest.
Spain and Italy declared their intentions to stay out of the new system and filed unsuccessful challenges at the CJEU. Since then the Italian Ministry of State has written to the Commission and to the EU Presidency announcing Italy's decision to join the scheme.
The pros and cons of electing for unitary effect and of opting existing European patents out of the UPC are set out in a book by Maucher Jenkins Partner, Hugh Dunlop: European Unitary Patent and Unified Patent Court, 2nd Ed. Available from CIPA: http://www.cipa.org.uk/eshop/
Latest News Updates
UK Government moves closer to Unified Patent Court ratification (12/16)
UK Government signals intent to ratify UPC before leaving the EU (11/16)
Business as usual for Jenkins as UK decides to commence negotiation for exit from the EU (6/16)
Please see below for links to key websites and documents, starting with the most recent:
Counsel's Opinion on Effect of Brexit on UPC 12 Sept 2016
The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016
Unified Patent Court Fees and Recoverable Costs
Protocol to the Agreement on a Unified Patent Court on provisional application
Explanatory memorandum on the draft proposal for rules on the European Patent Litigation Certificate and other appropriate qualifications
Draft proposal for rules on the European Patent Litigation Certificate and other appropriate qualifications
UPC Rule changes in the 18th Draft include relaxation of some tight deadlines
18th Draft Rules of Procedure of the Unified Patent Court
Proposed Unitary Patent Renewal Fees
Judgement: Court of the European Union - 5 May 2015 Case C-147/13
Rules 1-24 relating to unitary patent protection as approved in principle at the Select Committee’s 11th meeting held in Munich on 9 December 2014
CIPA Response to the IPO's Technical Review and Call for Evidence on Secondary Legislation Implementing the Agreement on a Unified Patent Court and EU Regulations Establishing the Unitary Patent, 5 September 2014
Court of Justice of the European Union; Press release No 47/13. Luxembourg, 16 April 2013 Joined Cases C-274/11 and C-295/11; Spain and Italy v Council
Judgement: Court of the European Union - 16 April 2013. Joined Cases C-274/11 and C-295/11
By their applications, the Kingdom of Spain and the Republic of Italy sought annulment of Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (OJ 2011 L 76, p. 53) (‘the contested decision').
Further actions brought by the Kingdom of Spain.
Case C-146/13: Spain v European Parliament and Council of the European Union
Case C-147/13: Spain v Council of the European Union
Minutes of the Signing of the Agreement on a Unified Patent, 19 February 2013
Corrigenda to Agreement, 29 January 2013
Agreement on a Unified Patent Court, 11 January 2013
European Commission: Unitary Patent - Ratification Process
Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection.
Council regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.