Unified Patent Court and Unitary Patent

16 May 2017 Updated 5 July 2017

By art 1 of an agreement dated the 19 Feb 2013 (“the UPC Agreement”) HM Government and the governments of most of the other member states of the European Union agreed to set up a court common to the contracting parties for the settlement of disputes relating to European patents and European patents with unitary effect (“unitary patents”) which will be known as the Unified Patent Court (“the UPC”). A European patent is a patent granted by the European Patent Office under the European Patent Convention as opposed to a national patent granted by a national intellectual property office such as the IPO for the territory of a member state under its national patent legislation. A unitary patent will be a European patent for the territories of the states that ratify the above agreement.

The Agreement provides for the UPC to consist of a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance is to comprise a Central Division and regional and local Divisions. The Central Division is to have its seat in Paris with sections in London and Munich. Sites have been confirmed for local or regional divisions in Germany, Italy, Luxembourg, Sweden and the UK. The Court of Appeal and the Registry will be in Luxembourg.

The Court is to open on the 1st day of the 4th month after 13 states including France, Germany and the UK have ratified the UPC Agreement. These conditions seem likely to be satisfied by September which would enable the Court to open its doors on 1 Dec 2017.

The decision of a plurality of the British electorate to withdraw from the European Union in the referendum of the 23 June 2016 and the intention of HM Government to implement that decision had cast doubt on whether the Court could open at all. On 28 Nov 2016 Baroness Neville-Rolfe who was then Minister for Intellectual Property announced that the UK will continue with preparations for ratification over the coming months and will be working to bring the UPC into operation as soon as possible.

However, it seems unlikely that the UK could continue to participate in the UPC after it leaves the EU without a radical amendment of the UPC Agreement before the UK’s departure in March 2019.

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