The future of the Unitary Patent package

11 July 2016

EPO President Benoît BattistelliLast week I spoke at a major conference hosted by the EPO in our Munich headquarters, convened to discuss the state of implementation of the Unitary Patent and the Unified Patent Court. Bringing together more than 200 participants from all over Europe, among them representatives of government authorities, business and academia as well as lawyers and patent attorneys, the focus soon shifted towards a discussion about the future of the Unitary Patent package after the recent referendum in the UK.

It is clear that political decisions on the future of the Unitary Patent package will take some time but it was equally evident that one sentiment prevailed among the conference participants: ways have to be found for the Unitary Patent package to go ahead and to enter into operation as soon as possible. There is hope that political leaders will listen to the pleas of the user community to go ahead with the Unitary Patent package in one way or another. Indeed at a time of economic challenges and significant budgetary constraints for companies, businesses should not be denied the economic advantages and cost savings offered by the Unitary Patent package.

Presentations at the conference on the state of implementation also highlighted that the UPC is ready to begin operating once the necessary ratifications of the UPC Agreement are obtained. Panel discussions among business representatives confirmed that users are by and large happy with the envisaged implementation, including renewal fees the Rules of Procedure of the Unified Patent Court and other decisions of the UPC Preparatory Committee. A panel discussion among renowned patent judges has, in addition, shown that future UPC judges will be well prepared for the challenges and that proceedings can be expected to be handled in the most efficient way.

But how to proceed with the Unitary Patent package? In the best case scenario, the UK could go ahead as soon as possible with the ratification of the UPC Agreement. This would allow the UK afterwards, in its EU exit negotiations, to obtain its continuous participation both in the Unified Patent Court and the Unitary Patent.  With the UK having brought the system into operation by ratification and having participated in the system from the beginning, it is possible that Member States may allow the continued participation of the UK , even after the ‘Brexit’ takes effect.

There are of course other scenarios; as more and more ratifications occur, Member States will consider how to ensure the timely delivery of the UP-UPC, even if that regrettably means going ahead without the UK. There seems to be a clear feeling in the international user community that the system would remain sufficiently attractive for many. It would be regrettable to leave out a major patent country such as the UK, a country that can help to shape the future of the system in a business and user-friendly approach. But it is entirely up to the UK authorities to determine whether they want to participate in the Unified Patent Court and in the Unitary Patent or not.

Whatever decisions are taken at political level it can be expected that the system will go ahead. Work has advanced much too far and has generated too much positive momentum to be suddenly put on hold now. In any event, the EPO stands ready not only to register the first Unitary Patents, but also to assist as much as possible in finding appropriate solutions in the interest of our user community and our Contracting States.

Benoît Battistelli

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Categories: Unitary patent

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