Unified Patent Court
Only Germany is now required to ratify the UPC Agreement (UPCA) in order for the Unified Patent Court (UPC) to open for business. German ratification has been delayed by a private challenge to the UPC system before the German Constitutional Court. The admissibility of this challenge is expected to be decided later this year. If it fails, and Germany then ratifies the UPCA, the UPC should open, and the first Unitary Patents be granted, in 2020.
When it opens the UPC will have jurisdiction not only over new Unitary Patents but also over existing European patents which have not been opted out of its jurisdiction. Despite the delays, businesses should continue with their preparations for the UPC and, in particular, should consider their future patent filing and litigation strategies in light of the UPC’s expected arrival.
Provisional application phase
Assuming the outcome of the challenge pending before the German Constitutional Court is in favour of the UPC, the next stage will be the Provisional Application Phase. The Provisional Application Phase is a period of six months during which practical preparations for the opening of the UPC, including the recruitment of judges and court staff, and testing the IT and case management systems, can be completed. The phase also includes a sunrise period that begins three months before the UPC opens for business and during which it will be possible for patentees to request that any of their existing European Patents be opted out of the new UPC system.
The effect of Brexit
The UK ratified the UPCA in April 2018. After it leaves the EU, the UK’s relationship with the UPC and the unitary patent system will be subject to political negotiation. Shortly after the referendum, the head of Simmons & Simmons’ London Intellectual Property Group organised a consortium of the IP Federation, the Chartered Institute of Patent Attorneys, and several law firms, to seek an Opinion from EU Constitutional law experts, Richard Gordon QC and Tom Pascoe on whether the UK would be able to continue to play a part in the UPC after leaving the EU. For the reasons set out in that Opinion, provided certain steps are taken, it seems that legally UK should not have to leave the UPC upon Brexit.
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