Will 2018 be the year of the Unitary Patent and the UPC?

Will 2018 be the year of the Unitary Patent and the UPC?

30 January 2018

2018 will be a pivotal year for the European Unitary Patent (UP) and Unified Patent Court (UPC). Latvia ratified the UPC Agreement on 11 January 2018 and the UK government will be in a position to ratify the UPC Agreement if approved at a Privy Council meeting held in February 2018.  However, the German ratification is still on hold pending the German Constitutional court challenge.

Latvia are the fifteenth country to ratify the UPC Agreement.  Latvia has not yet signed the Protocol to the Agreement on a Unified Patent Court on provisional application (PPA) .  The PPA allows some parts of the UPC Agreement, such as a sunrise period for opting out patents, to be applied before the Agreement comes into force.  A few other key countries have also not ratified the PPA.  However, Italy has recently indicated that it is ready to ratify the PPA.

Meanwhile, the UK is close to being in a position to ratify the UPC Agreement (and the PPA).  The draft Unified Patent Court (Immunities and Privileges) Order 2017 is awaiting final approval by the Privy Council, who are expected to meet next in early February. If the Order is discussed and approved in this meeting, then the UK government will be in a position to ratify both the UPC Agreement and the PPA.  It is not yet known if the UK government will ratify shortly after approval, but such a move would put political pressure on Germany (as the last mandatory ratification of the UPC Agreement required).

In Germany, the ratification process is held up by a Constitutional Court challenge.  The German Constitutional Court invited several organisations to provide comments on the case by the end of 2017. Four of those organisations DAV (DeutscherAnwaltVerein, German Bar Association), BRAK (Bundesrechtsanwaltskammer, Federal Bar Association), GRUR (Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht, German Association for the Protection of Intellectual Property) and EPLIT (European Patent Litigators Association) have now published their opinions.  All of the opinions broadly conclude that constitutional challenge should be rejected as inadmissible or unfounded.  This offers some hope that the challenge will be dismissed, although no guarantee of it.

A real issue with the challenge is the timing.  No date for the decision from the German Constitutional Court has been set as yet.  Progress of the UPC system is effectively on hold pending the outcome of the challenge.  The concern is that the constitutional challenge is only resolved in the second half of 2018.  This would leave very little time for completion of the final preparations for the UPC system (including final testing of the IT system and concluding the recruitment of judges) before Brexit in March 2019.  If the UPC does not open its doors before March 2019, there is a serious concern that the UPC will be delayed even further while the participation of non-EU countries in the UPC is discussed.

The road to a single European patent right and patent litigation forum has faced many difficult obstacles along the way.  2018 will be no exception. All eyes will be on the German Constitutional Court, whose decision could make or break the system.