Patent holders must prepare a patent strategy before the Unified Patent Court system takes effect.

On 26 April 2018, the UK government confirmed that the UK has now ratified the international agreement (the Agreement) to set up a Unified Patent Court for Europe (the UPC). Whilst the government promised this move in November 2016, the UK’s decision to leave the EU cast doubt on whether the UK would formally ratify the Agreement. The confirmation demonstrates the UK government’s commitment to continue to engage with European regulatory activity post-Brexit.

The UPC will allow patent holders to defend their rights with a single patent and single legal system across Europe, rendering patents less expensive and more readily enforceable throughout the EU, as opposed to the current procedure which requires patents to be registered and enforced on a country-by-country basis. The aim is to both enhance the European market, and to make the European market more competitive with the US and China in terms of patent protection. On the other hand, the unified system raises the risk of centralised revocation of a patent, which could have serious implications on high value patents.

For the UPC system to take effect, 13 EU countries (including France, UK, and Germany) must pass national legislation to ratify the Agreement. As of now, the UK, France, and 14 other EU countries have done so. Germany has not yet ratified the Agreement, as an ongoing legal challenge to the proposed reforms, due to be heard this year, is taking place in the German Constitutional Court (the exact date is yet to be determined). Following the UK’s ratification, once Germany has ratified the Agreement, the UPC system will take effect.

The UPC system is fast-approaching and patent holders should consider preparing their patent strategy now. Latham will continue to monitor and provide updates on the UPC’s progress.

This post was prepared with the assistance of Sophie Cooper in the London office of Latham & Watkins.