Member States Sign Agreement to Establish Unified Patent Court

by McDonnell Boehnen Hulbert & Berghoff LLP

European Union (EU) FlagOn Tuesday, the Council of the European Union announced that twenty-four member states had signed the international agreement that would establish a Unified Patent Court (UPC), a specialized court having exclusive jurisdiction over infringement and validity questions related to unitary patents.  The Council release noted that Bulgaria was expected to sign the agreement in the coming days and that Poland and Spain had not signed the agreement.

According to the Council, the UPC will ensure the uniform applicability of patent law throughout the territories of the signatory countries.  During the signing ceremony, Richard Bruton, Irish minister for Jobs, Enterprise and Innovation, called the signing "a truly historic moment" that would "give enterprises greater access to patent protection at European level, and make enforcement of patents affordable."  The Council release indicated that the UPC would also avoid the occurrence of multiple court cases with regard to the same patent in different member states, prevent contradictory court rulings on the same issues, and reduce costs of patent litigation.

Now that the agreement has been signed, the process of ratification by national parliaments can begin.  For the agreement to enter into force, at least thirteen member states (including France, Germany and the United Kingdom) must ratify the agreement.  If ratified, the agreement calls for the Central Division of the Court of First Instance to be located in Paris with specialized sections of the UPC in London and Munich.  Ratification of the UPC agreement would also result in implementation of two EU regulations on the unitary patent as of January 1, 2014 (or thereafter if the UPC agreement is ratified after that date).  A factsheet regarding unitary patent protection in Europe was provided by the Council.

EPOIn a statement issued by the European Patent Office on Tuesday, the EPO boted that it welcomed the signing.  EPO President Benoît Battistelli said the signing was "a decisive step towards the long-awaited introduction of a truly supranational patent system in Europe."  The EPO release noted that the agreement on the UPC would lead to the creation of a specialized patent court for litigation relating to patents granted by the EPO under the provisions of the European Patent Convention, e.g., classical European Patents, as well as future Unitary Patents.  According to the EPO, the UPC is expected to bring major improvements to the current situation in which a multitude of national courts and authorities decide on the infringement and validity of European patents.  On his blog, President Battistelli cautioned that "the [unitary] patent package as a whole will still have to be implemented in a way that makes the new system attractive," noting that "[r]epresentatives of the user community have emphasised that the quality and efficiency of the new litigation arrangements and the level of renewal fees for the unitary patent are key elements which will determine whether the system succeeds in practice."

On Wednesday, Hal Wegner reported in his e-mail newsletter that despite the optimism in some parts of Europe over the signing of the UPC agreement, early ratification by Germany was "most unlikely" given the comments made by leading German patent expert Prof. Dr. Heinz Goddar two weeks earlier at the Naples Midwinter Patent Experts Conference.  According to Prof. Goddar, German ratification would likely not take place until at least 2015 or 2016, and as Mr. Wegner noted in his newsletter, could be held up until 2017 or 2018.

For additional information regarding this topic please see:

• "News from Abroad: Parliament Approves EU Unitary Patent Package," December 19, 2012
• "European Parliament Adopts Draft Regulations on Unitary Patent," December 12, 2012
• "Unitary Patent & Unified Patent Court," December 12, 2012
• "Progress for Single European Patent and Litigation System," November 12, 2012
• "EU Patent Is Finally Born," July 2, 2012
• "European Parliament Approves Enhanced Cooperation Procedure to Create Unified EP Patent System," March 1, 2011
• "Several EU Members Push for Unified Patent System," December 30, 2010
• "Europe Takes Step Closer to Single EU Patent and Patent Court," February 24, 2010

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.

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