In 2013, a number of European countries signed the Unified Patent Court Agreement to establish the Unified Patent Court (the "UPC"). Having been under preparation since then, it remains uncertain when the UPC will come into force.
The UPC will mean major changes for patent holders and technology intensive businesses. As a result of the UPC Agreement, a great number of patent cases will have to be brought before the divisions of the UPC instead of the ordinary national courts. At the same time, a European patent with unitary effect will be introduced, meaning a patent with uniform effect throughout the European Union, except for Poland, Spain, and Croatia.
The UPC was originally supposed to be up and running already in 2017, but the project has been delayed due to an action before the German Federal Constitutional Court questioning the compatibility of the UPC system with the German Constitution. Germany has therefore postponed ratification of the UPC Agreement, and German ratification is required for the UPC Agreement to enter into force.
On this feature page, you can keep yourself up to date and find information about the UPC.
This Friday, the German Federal Constitutional Court, "Bundesverfassungsgericht" ("BVerfG") declared the German ratification of the agreement on the Unified Patent Court (UPC) unconstitutional. It means that for the present time Germany's ratification of the agreement has been postponed for an indefinite period. As Germany's ratification is necessary for the UPC agreement to enter into force, the entering into force of the system has also been postponed for an indefinite period.
The UK has announced that it does not wish to participate in the Unified Patent Court (UPC) This will solve a number of problems but will at the same time create new ones.
A new announcement from the German government raises further doubts as to when the Unified Patent Court (UPC) may enter into force. The German government believes that the uncertainty about the legal consequences of Brexit and the implications to a European patent reform should be examined more closely. The UPC is now expected to enter into force during 2020 at the earliest.
Brexit is imminent, and it is still not clear whether the UK and the EU will manage to secure a Brexit agreement prior to 29 March 2019, when according to the plans the UK leaves the EU. Consequently, to address the uncertainties, the UK government has published guidance on the legal rights of the patent holder in case the parties do not reach an agreement. In general, the patent holders can breathe again; in case of a no-deal scenario, the rules and systems will basically be the same as now.
The Munich-based Max Planck Institute recently published a comprehensive report addressing the issue of whether the Unified Patent Court (UPC) would be incompatible with EU law post Brexit. The report concluded that the UK remaining in the UPC system post Brexit would be incompatible with EU law.
The UK has recently ratified the agreement on a unified patent court (the UPC Agreement). The UK is one of the three countries that have to ratify the UPC Agreement before it can enter into force. Following the UK’s ratification, only Germany’s ratification remains outstanding before the UPC Agreement can enter into force.
Plesner has just taken part in a large European mock trial concerning patent infringement. The mock trial was part of the European patent judges' preparations for the future Unified Patent Court (UPC).
The new patent system includes a new unitary patent and a European patent court (UPC) The new system gives rise to a number of questions in relation to supplementary protection certificates, which is the subject of an article by Attorney-at-Law, Partner Mikkel Vittrup and Attorney-at-Law Peter Nørgaard in the new issue of the trade journal Dansk Biotek.
While the UK has taken a decisive step towards ratification of the Unified Patent Convention, Germany's ratification is in danger of being delayed due to legal proceedings before the German Constitutional Court. This may further delay the coming into effect of the new unitary patent agreement.
When the patent reform comes into effect in early 2018, the so-called unitary patent will be introduced into European patent law. The unitary patent makes it less expensive and easier for patent holders to enforce their rights across borders. However, the unitary patent will be subject to a number of restrictions that should be taken into account, in particular during the start-up phase. Attorney-at-Law, Partner Jeppe Brinck-Jensen and Attorney-at-law Peter Nørgaard are the authors of an article about the future unitary patent in the new issue of the Danish trade journal Dansk Biotek.