The introduction of the two new Unitary Patent Regulations (the ‘Regulations’) in 20121 and the signing of the Uniied Patent Court (‘UPC’) agreement in February 2013, represent the most significant change in patent law across Europe in 40 years. In 2014, further progress has been made towards the goal of harmonisation of the patent system in Europe.
UPC - Draft Rules of Procedure published
A key factor for the success of the UPC will be the Rules of Procedure (‘Rules’) that govern how proceedings in the UPC will operate for the actions over which the court has competency. 2014 has seen the publication of the 16th and 17th drafts of the Rules; these drafts having resolved many of the previously outstanding issues. It is expected that the 17th draft will be the last before the inal version of the Rules is published in early 2015.
AG’s opinion on Spain’s challenges to the Unitary Patent
On 18 November 2014, Advocate General (‘AG’) Bot delivered his opinion on the Spanish challenge to the two Regulations. Spain had refused to agree the Regulations on a number of grounds, the most important of which were the supposed lack of legal basis for their introduction using the ‘enhanced cooperation procedure’, and a plea that the Translation Regulation was discriminatory to those whose mother tongue was not English, French or German.
The view of the AG is that all of the actions should be dismissed. The AG considers that the Regulations were validly adopted, providing for unitary effect and uniform protection within the participating member states. Whilst the AG recognises that the selection of French, English and German for the language regime is potentially discriminatory, it may be justified on the grounds of practicality, proportionality and costs.
If followed by the CJEU, the Spanish challenge will fail and the Regulations and associated transitional arrangements are likely to come into force following ratiication of the UPC agreement by at least 13 of the 25 participating countries, which could be as early as the end of 2015.