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Unitary Patent - back in business?

Heidi Hurdle
03/12/2020

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United Kingdom

This year events have not looked positive for the Unitary Patent system, but now its future is looking brighter again with the news that the German parliament has passed the legislation required for ratification of the Unitary Patent Court Agreement.

Unitary Patent and UPCA: where did we get to?

We have been closely following all the ups and downs of the state of play of the Unitary Patent and the Unitary Patent Court Agreement (UPCA). In our last blog in the summer we recounted the news of the UK's formal withdrawal of its ratification of the UPCA, see Unitary Patent in limbo after UK takes its final step away?

This announcement, combined with the news in March 2020 from the German Federal Constitutional Court that the German ratification was invalid, painted a bleak picture for the Unitary Patent's future.

Latest news from Germany 

In the summer we referred to some potential green shoots emerging for the Unitary Patent system following the German government's announcement that it would repeat the ratification process in the proper way as soon as possible.

These green shoots were given a major boost on 26 November 2020 when the Bundestag approved the legislation for the UCPA and its Protocol on the provisional application. The approval was given by a majority of over two-thirds of the Bundestag’s members, a requirement which had been set by the Federal Constitutional Court in its March decision when it declared the earlier legislation passed in 2017 void. (See the UPC press release).

What happens next?

The next step in Germany is for the bill to be presented to the Bundesrat (Federal Council) for approval: this is anticipated to take place on 18 December 2020. However, there are rumours of a new constitutional complaint by the FFII (Foundation for a Free Information Infrastructure).

Leaving aside what is happening in Germany, a solution needs to be found to the problem that the UK was one of the three states, together with Germany and France, which had to ratify the UPCA for it to come into effect. There is also the ongoing question over the location of the life sciences seat of the central division of the UPC, which was due to be London, with unsurprisingly interest from a number of countries. So it will still be sometime before we can say for certain that the Unitary Patent system is definitely back in business!

Somewhat timely (perhaps), the day before the Bundestag vote in Germany the European Commission adopted a substantial action plan on intellectual property to strengthen the EU's economic resilience and recovery (see Commission press release). In relation to patents, the Commission calls member states for a "rapid roll-out" of the Unitary Patent system.

With the UK being in the last month of the Brexit transitional period, UK businesses should remember that even if the UK is outside the system, they could still be open to litigation under the UPC, if they infringe patent rights in countries that are part of the UPC system. (For further discussion of what Brexit means for patents and other intellectual property rights from next year see our briefing note: Brexit and intellectual property, a new horizon.)

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