Unified Patent Court delayed by months, not years, suggests body delivering reforms

Out-Law News | 29 Jun 2017 | 11:20 am | 2 min. read

Delays to the operation of a new unitary patent and Unified Patent Court (UPC) system in Europe will hopefully be measured in months, not years, according to a new statement issued by the body tasked with laying the foundations for the new judicial system to take effect.

UPC Preparatory Committee chairman Alexander Ramsay outlined a tentative new timetable for the reforms on Tuesday. The statement is the clearest indication the Committee has given since January of the likely timeframe for the unitary patent and UPC reforms to take effect.

Ramsay welcomed the fact that the UK has now laid legislation necessary to ratify the UPC reforms before the country's parliament, and confirmed Estonia is also moving closer to ratification. However, he flagged the need for three other EU countries, including Germany, to ratify before the UPC can become operational. He mentioned the uncertainty around German ratification caused by the fact a legal challenge has been brought against news laws passed recently by the country's parliament. That legal challenge concerns whether those laws are constitutional.

Ramsay said it was difficult to be precise about the timetable for reforms given the continuing uncertainty, but did explain what timescales he hoped could be worked to.

"Under the current circumstances it is difficult to maintain a definitive starting date for the period of provisional application," Ramsay said. "However, I am hopeful the situation regarding the constitutional complaint in Germany will be resolved rather quickly and therefore I am hopeful that the period of provisional application can start during the autumn 2017 which would mean that the sunrise period for the opt out procedure would start early 2018 followed by the entry into force of the UPCA and the UPC becoming operational."

"A more detailed timetable will be communicated … as soon as the picture is clearer," he said.

It was originally envisaged that the sunrise period for opting out European patents would begin in early September 2017 and last for a "minimum of three months", and that the UPC would become operational in December this year.

However, the UPC Preparatory Committee confirmed earlier this month that those timescales could not "be maintained", blaming delays to the ratification of the UPC Agreement by some countries. Ramsay's new statement now provides some detail of the new timeframe the Committee hopes can be worked to.

For the new UPC system to take effect, at least 13 EU countries, including the three with the most European patents in effect in 2012 – Germany, France and the UK, must pass national legislation to ratify the UPC Agreement that the countries behind the new system finalised in 2013. France is one of the countries to have completed ratification to-date.

Munich-based patent law experts Michael Schneider and Marc L. Holtorf of Pinsent Masons previously said that it could take approximately a year for the constitutional challenge against Germany's UPC implementing legislation to be resolved.

"This legal challenge is now set to cause delay to Germany's ratification and, therefore, the operation of the UPC," Schneider said. "It now looks increasingly likely that the earliest that the unitary patent and UPC framework could become operational will be towards the end of 2018 or into 2019."

A further issue to be resolved is whether the UK will be able to participate in the new unitary patent and UPC system after the country formally exits the EU, even if its participation begins prior to Brexit taking effect. The UPC Agreement currently requires countries participating in the new unitary patent and UPC system to be EU members.