Jury out on the Unified Patent Court

According to some, the European Unified Patent Court Agreement (UPCA) could have been ratified by the UK by the end of March 2017, with the Unified Patent Court (UPC) and the Unitary Patent (UP) timetabled to come into force in early December 2017.

The status of the UPC has been the topic of much debate since the European Brexit referendum, with some “Brexiteers” regarding it as a subversive means to tie the UK to Europe following Brexit. This is despite the UK government regarding the UPC as an “international court,” however, it is true that the UPC will adhere to EU law, with certain cases being ultimately answerable to the Court of Justice of the European Union (CJEU).

The UK Association for European Law recently emphasised that the contracting member states of the UPC had made every effort to keep the influence of the CJEU to a minimum and will only have jurisdiction to hear substantive patent, validity and infringement matters. However, some noted that an arm’s length relationship with the CJEU is far from satisfactory for those in the “Hard Brexit” camp.

Given it has taken almost 40 years negotiation to agree on a unitary patent system, and given that the UK is set to host one of the three branches of the central division of the UPC in the heart of London, it is no surprise that pharmaceutical companies, IP lawyers, and other industry sectors will welcome the ratification of the UPCA. A unitary patent would have numerous advantages for inventors and life science investors alike, with the removal of red tape and costs and by ultimately streamlining the process for filing and registering patents, as well as making enforcement actions simpler. Given that the UK hosts some of the world’s leading pharmaceutical companies, and over 700,000 people are employed in life sciences sectors in the UK, the importance, and relevance of a unified patent system is significant.

The sunrise-period allowing opt-outs from specific European patent applications and European patents from the competence of the UPC is provisionally scheduled to begin in 2017. Patent owners should, if not already doing so, begin reviewing their portfolios and thinking carefully about their filing strategy, which should allow them to file any necessary opt-out requests during this period. However, at the same time patent owners would be wise to keep an eye on UP/UPC developments given that, particularly in the current climate, when it comes to Europe nothing seems very certain.