Wednesday, 19 July 2017

Is the unitary patent pulled into Brexit negotiations?

Michel Barnier during the 12/07/2017 press conference in Brussels

At a press conference by Michel Barnier, Chief Negotiator for the EU, some comments were made about the unified patent court. On the one hand, he mentions that the location of the unified patent court is not part of his negotiating mandate. On the other hand, he also indicates that the location of UPC is being considered, and that it may have to move as a result of the UK's decision to leave the EU. 

I find it difficult to gauge what this could mean for the UPC's prospects. If it is not formally part of the Bexit negotiation, then this might mean that political agreement is needed at some other level? WIPR has an interesting article about it. 

The press conference can be viewed here at the EU website about the brexit negotiations.  The question leading up to the comments about the unified patent court start at 14:00, Barnier's answer about the Unified patent courts starts at 15:35. The link points to the English translation, but other languages are available.

Photo is taken from the European Commission Audiovisual Services






Tuesday, 20 June 2017

Battistelli: “nobody knows today” (what will happen to the London court)

Battistelli speaks to award winner Adnane Remmal

At the occasion of the European Inventor Award 2017 (15 June 2017 in Venice), Benoît Battistelli, president of the European Patent Office (EPO) spoke to reporters about the unitary patent (Euractive reports).

According to him the Unified Patent Court is “is not an EU agency”,and so the London location of the court's central division would not have to be relocated to an EU member state after Brexit is complete. Whether that would be politically acceptable  “would be another issue” and “It will depend on the outcome of the negotiations”. He conceded that “nobody knows today” what will happen with the court.

According to the article we do have a new start date though: early 2018.

I'm not sure I'd bet on that. Let's say that early 2018 means March 2018, and assuming an 8-month lead time between ratification and start, this would mean that by August 2017 the UK and Germany have each ratified the UPC agreement.  Given the politically sensitive issue for the UK and the requested delay of the German constitutional court, it seems a bit optimistic that both will be resolved in two months time.


Photo from the Award ceremony photo gallery at EPO. 



Wednesday, 14 June 2017

New delay for unitary patent




The start of the unitary patent system has a few further setbacks: one less surprising (the United Kingdom), one more surprising (Germany).

Up to now, the goal was to have the system up and running by December this year. That date relied on the timely ratification of the required states. In particular, the United Kingdom ought to have ratified the agreement last May. As that did not happen, the start date of the unitary patent system has also been delayed. The unified patent court has published an update to their timeline, confirming that December 2017 will not be met.

Apart from the ratification of the UK which is not forthcoming, another ratification problem is caused by the Protocol on Provisional Application. This lesser known protocol arranges the starting-up period of the court. Up to now, there are only 11 signatures which is not enough. Interestingly, the United Kingdom has signed the protocol, so no problems there.

The unified patent court has not yet set a new date.

The other setback comes from Germany. According to the Frankfurter Allgemeine Zeitung, the Bundesverfassungsgericht (Germany's constitutional court) has asked the President not to ratify the UPC agreement yet (here is the German article, an English source is here). Someone has brought a constitutional complaint which needs to be settled before ratifying. Kluwer has interesting speculations, that the problem could be more substantial than just the unified patent court. I haven't found confirmation at the website of the Bundesverfassungsgericht yet.

Photo by slon_dot_pics (slon.piccs) via Pixabay under a CC0 license.




Monday, 30 January 2017

New minister for Intellectual Property on Unified patent court


There is a new minister for Intellectual Property in the UK, Jo Johnson

The previous minister, Baroness Neville Rolfe, made some promising statements about  the UK's intentions to ratify the agreement on a unified patent court (UPC). She said on the one hand that  the UK government is proceeding with preparations to ratify the Unified Patent Court Agreement, but on the other hand that "(...) the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU".

New minister Jo Johnson has confirmed these sentiments and strikes perhaps a slightly more positive note. In a a House of Commons Science and Technology Committee session on 11-Jan-2017, he said "We have taken a decision to proceed with preparations to ratify the UPC Agreement. We believe it is important that we participate in this framework. It has value to UK inventors and businesses and we want to be there at its creation.” He declined to answer how the Brexit might influence this decision though: “These are questions that will form part of the greater discussion of the Brexit negotiations.” (Quotes copied from IP Pro Patents.) 

About a week later, Mr. Johnson submitted an explanatory memorandum to Parliament. The document is an interesting read and stresses the benefits of the unitary patent system. One section to note (section 3.) is the following:

The UPCA establishes a specialised, non-EU patent court under international law with jurisdiction for disputes relating to European patents in 25 European countries. The Agreement is between 25 EU countries (not Spain, Croatia or Poland), the EU is not a signatory, and establishes a court common to the 25 participating countries as an international Organisation with legal personality in each. The UPC is part of the judicial systems of the participating countries in so far as it has jurisdiction over patents valid in their territories. However, the UPC forms a separate jurisdiction to the national court systems and it will not be part of the UK Court system.

This is true, as far as it goes. The unified patent court indeed is not an EU institution. However, it is also the case that the unified patent agreement repeatedly refers to EU law and the EU court of justice. If and how the UK can stay in the UPC after a Brexit is a current debate, and perhaps these are the questions that are part of the greater discussion of the Brexit negotiations that Mr. Johnson ment.

Photo by Myriams-Fotos via Pixabay, under a Creative Commons CC0 license. No changes were made.

Tuesday, 29 November 2016

UK still proceeding with preparations to ratify Unified Patent Court


In a press release the UK intellectual property office states that they are still proceeding with preparations to ratify the Unified Patent Court Agreement. The press release is optimistically titled "UK signals green light to Unified Patent Court Agreement".

It is not all green lights in the press release though. Baroness Neville Rolfe (Minister for Intellectual Property) links the ratification to access to the free market. Is this press release offering ratification of the unitary patent in exchange for access to the free market? Despite the optimistic language, I still do not expect a quick ratification. If the Article 50 exit negotiations will include negotiating the Unified Patent Court Agreement, it will take at least two more years. Assuming of course, the unitary patent does not fall by the wayside in the process.

Photo "Good to go" by Blondinrikard Fröberg via Flickr under a CC-BY 2.0 license.


Tuesday, 22 November 2016

EPO ready for unitary patent

Waiting for the UK

According to a statement of the select committee the EPO has completed the legal preparations for the Unitary Patent. In particular, they have approved how the fees coming from the unitary patent are to be distributed among the participating member states.

At present, it doesn't look like many fees will be rolling in any time soon though. When the select committee will have their next meeting will depend on 'the development of the question of the entry into force of the UPP/UPC at the political level, within the framework of the European Union'. As long as the UK does not ratify the Agreement on a unified patent court, the unitary patent cannot start. The UK may or may not do so, but no news is forthcoming from that front. At the latest the select committee will reconvene in March 2017.


Photo by Unsplash via Pixabay, under a CC0 license; no changes were made to the photo.

Friday, 14 October 2016

Labour asks about UK's intentions for unitary patent



The UK Labour party has sent a list of 170 questions to David Davis, the Secretary of State for Exiting the European Union. The list includes two questions on the unitary patent: questions 110 and 111. Also view WIPR's discussion here

110. Does the government intend to proceed with ratification of the EU agreement to establish a Unified Patent Court, in the agreement’s present form; and if not, what steps is the government taking to negotiate an alternative agreement to which it would be willing to sign up? 
111. If the Unified Patent Court (UPC) goes ahead, will the Human Necessities seat of its Central Division continue to be located in London, as prescribed in Article 7(2) of the UPC agreement?

The first questions reflects the basic choice the UK now has to make. Does it want to make an effort to stay in the unitary patent, and if not is it worth the trouble to ratify just to leave later on?

If the UK wants to stay in the unitary patent system after Brexit, it seems likely to me that some kind of agreement is needed. If not a new agreement outright  the users will need to see something on paper to restore confidence that their unitary patents will be valid in the UK.

Prime Minister Theresa May has said that she does not want to jeopardize her negotiation strategy. So I  don't expect too much of the answers. Who wants the unitary patent more: the continent or the UK? Could the unitary patent become a bargaining chip?

Photo by geralt via Pixabay under a CC0 license (no changes).