Article January 12, 2017

UK & Europe – IP update

The biggest development in European patents this year will be the Unified Patent Court (UPC). The UPC is an agreement which seeks to create a single court for all patent litigation for Member States subscribing to the Unified Patent Court Agreement.

Article 89 of the agreement requires 13 Member States to ratify the agreement, but it is also a requirement that France, the UK and Germany must all ratify in order for the UPC to go ahead.

The Brexit vote initially threw up some uncertainty as to whether the UK would proceed with ratification. However, in November 2016 the UK indicated its intention to ratify the agreement by signing a pre-legislative Protocol on Privileges and Immunities of the Unified Patent Court. Next, it will go to Parliament for full ratification.

With France having already ratified the UPC in 2014, Germany has restarted its legislative process for ratification.

What will this mean for patent holders?
The UPC will impact on holders of a European Patent (EP). Currently, a European Patent is a standardised legal framework for applying for patents. It does not automatically provide rights across Europe. European Patent holders currently elect the territories in which they would like intellectual property rights for that patent to apply.

Following the introduction of the UPC, all granted European patents will be automatically enforceable across all the Member State territories subscribed to the UPC, as well as enabling enforcement actions to be brought to the UPC itself.

While there is no way of accurately predicting what impact this will have on litigation trends, some uncertainty remains. The consequences of having a patent invalidated not only in the current jurisdiction where they hold rights but across all the UPC territories will be of concern to a patent holder.

Patent holders may be able to risk manage their exposure, to some extent, by monitoring litigation and legal developments closely, and considering if they would like to ‘opt-out’ their patents from the new regime. For more background information, please see the reference links below.

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Latest timeframes
Spring 2017 – UK expected to complete the ratification process through Parliament
Spring/Summer 2017 – Germany expected to ratify UPC, after UK completes its process
Late Summer/Autumn 2017 – Full operation of UPC begins