The UK government has concluded its consultation on the legislation required to implement the Unified Patent Court (UPC) Agreement and EU legislation on the unitary patent. It published a response to the consultation on 14 January 2016 and draft legislation has since been laid before Parliament in the form of The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 (the 'draft order'). The order will come into force at the same time as the UPC Agreement.

Amendments to the Patent Act 1977

Article 2 of the draft order makes amendments to the Patents Act 1977. Of particular interest is Article 2(3) which introduces two new exceptions to patent infringement to Section 60 of the Patents Act, based on their presence in the UPC Agreement.

The first exception relates to the use of biological material for the purpose of breeding, or discovering and developing other plant varieties for example, by cross breeding with a plant that has beneficial characteristics but also includes patent characteristics that are not intended to be present in the final variety. It will be implemented in full, in relation to all UK patents.

The second new exception allows someone to (amongst other things) convert a lawfully acquired patented computer programs from one format to another. The rationale behind this exception is apparently to ensure that the presence of a patent does not prevent the lawful use of a computer program under already existing exceptions to copyright.

The origin of this exception and how it found its way into the UPC Agreement is something of a mystery, as it has no basis in any existing European patent law. Given the uncertainty as to its meaning and scope, the decision has been taken to limit application of this exception to unitary patents and European (UK) patents only. It may be extended to purely national GB patents in due course, once the scope of the exception is better understood, possibly through experience in the UPC.

Other provisions of the draft order are to apply provisions of the Patents Act 1977 to unitary patents, as well as to enshrine the exclusive jurisdiction of the UPC in respect of infringement and validity actions relating to unitary patents or supplementary protection certificates based on unitary patents. It also makes provision for the enforcement of decisions of the UPC.

UK ratification

Following the laying of the draft order before Parliament, the UK is well on track to have the necessary implementing legislation in place by spring 2016, and then be in a position to ratify the UPC Agreement.

Finland ratifies the UPC Agreement

Finland has become the latest member state to ratify the UPC Agreement, bringing the total number of countries which have ratified to 9 (Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal, Sweden and Finland).

In order to comply with the provisions of the UPC Agreement, the Finnish Patents Act was amended by the Finnish Parliament on 08 January 2016.

The instrument of ratification was deposited with the EU Council on 19 January 2016.

As readers may be aware, the UPC Agreement requires a total of 13 member states to ratify the UPC Agreement before it can come into force, and those member states must include France, Germany and the UK. France was one of the first member states to ratify and we now await ratification by the other key member states, Germany and UK, in the coming months.

D Young & Co unitary patent and Unified Patent Court updates can be viewed online at www.dyoung.com/unitarypatent.

Useful links

Draft Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016: http://dycip.com/draftupcorder

Government consultation on secondary legislation implementing the Unified Patent Court: http://dycip.com/upcconsultation