3 March 2016
The CJEU has dismissed Spain’s legal bid to block the creation of a unitary system allowing companies to obtain and enforce patents across a large part of Europe as a single right. The Unitary patent and court will therefore come into existence upon ratification by the governments of the UK, Germany and five more countries. Ratification is neither predictable nor guaranteed, but there is now one less reason not to believe commentators predicting sometime in 2017.
Creation of the Unitary Patent alongside a Unified Patent Court (UPC) aims to improve European patent protection. The Unitary patent will provide a new option following grant of a European patent allowing companies to make a single request for unitary effect in the participating states. The UPC will have jurisdiction in participating states for all Unitary patent disputes as well as classically validated European patents. Whilst restricted to effect in participating states, it is likely on a practical level that the UPC will mean in some instances access to European wide injunctions and relief in a single action.
The Spanish government believes the Unitary right is not in the interests of Spanish businesses and has been a staunch opposer of the initiative. In a bid to have the implementing regulations deemed unlawful, thereby derailing the whole initiative, Spain took two cases to the Court of Justice of the European Union (CJEU). In a press release on 5 May 2015, it has been announced that Spain lost both cases. Assuming the practical issues such as computer systems, fees, and procedures can be solved, the only barrier to the arrival of the Unitary patent and UPC now appears to be ratification by thirteen of the member states to include the UK, France and Germany. Although France and five other states have already ratified the agreement, the timeline for the UK, Germany and the five other states necessary to complete the ratification can’t be estimated. It is still possible for political ill will to prevent or at least significantly delay the implementation. However, predictions of the arrival of the Unitary Patent and UPC in 2017 are now looking more plausible.
Whether it means making a decision to opt for classically validated patents out of the UPC, or to avoid a single revocation procedure through national patents, or to take advantage of the unitary patent cost savings, all businesses operating in Europe have a stake in the Unitary Patent and UPC. The considerations will vary from business to business and may take time to properly assess. Whilst not all the information is available yet and there are still some important uncertainties that need resolving, strategic planners should have a 2017 ratification date pencilled in.
For more information on the UPC, contact Paul.
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