Biotechnology Considerations for the Unitary Patent System in Light of Brexit and Other Current Developments

Knobbe Martens

Knobbe Martens Olson & Bear LLP

After the United Kingdom voted to leave the European Union, dubbed “Brexit” by the press, many have called into question whether the UK would ratify the Unitary Patent System. The Unitary Patent System will create a Unitary Patent and a Unitary Patent Court (UPC) system to enforce patents across many European states. Brexit was especially troublesome for those in the biotechnology field because the UPC was planning to hold many of its “human necessities” patent cases in its London based court. Following Brexit, there have been several new developments with regard to the UPC, but these events have not eased the uncertainty felt in the biotechnology field.

One such development is that the UK government, which is one of the 13 member states that necessarily must adopt the UPC agreement for it to take force, recently announced that it would in fact ratify the Agreement. This is good news for those interested in the time and cost savings associated with filing and enforcing a Unitary Patent. A single Unitary Patent will streamline the expansive filing process normally associated with many biotechnology and pharmaceutical patent applications. Additionally, litigation at a single system of courts will consolidate patent enforcement thereby streamlining proceedings, reducing costs, and facilitating the ability for global patentees to take consistent positions when defending or asserting their patents. Accordingly, the UK’s recent announcement and the opening of the UPC, which may take place as soon as December 2017, may benefit small to mid-size companies with limited resources.

However, news of the UK’s announcement to ratify the UPC Agreement is tempered by the UK Prime Minster Theresa May’s speech calling for an end to the EU’s and the European Court of Justice’s (ECJ) jurisdiction over the UK. Theresa May’s comments are in conflict with the UK’s announcement to ratify the agreement because under the Unitary Patent System, ECJ decisions will be binding on the UPC, and in turn, the ECJ will retain jurisdiction over the UK through these patent courts. Although this contradiction may be resolved through negotiations between the UK and the EU, it is feared that such deal making may only further delay the institution of the Unitary Patent System.

After many set-backs in bringing a Unitary Patent System to Europe and the latest launch date slated for the end of 2017, the biotechnology industry may have to continue to hold its breath for the Unitary Patent and the determination of the location of the UPC’s biotechnology arm.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Knobbe Martens | Attorney Advertising

Written by:

Knobbe Martens

Knobbe Martens on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.