The European Parliament Committee on legal affairs organised a session last week on the Unitary Patent Package. Benoit Batistelli the President of the EPO, Mr Tokarski from the EU Commission Directorate-General for “Internal Market, Industry, Entrepreneurship and SMEs”, and Mr Bernhard Rapkay EU MP of the Socialist and Democrats group, presented the UPC state of affairs.

Ratification of the Unified Patent Court Agreement and Protocol for the provisional application of the Agreement for the Unified Patent Court Agreement:

Mr Batistelli gave an update on the state of ratification. He indicated that:

  • Germany should be ratifying the UPCA in the coming weeks.
  • the UK has publicly committed itself to ratifying the UPCA before leaving the EU. In fact, Jo Johnson, the new UK Intellectual Property minister confirmed to President Batistelli that the UK government is committed “to finalize the national ratification of the UPC treaty in order for the Court to be operational on 1st December 2017”. This will enable the EPO to deliver the first Unitary Patent at the same time.

The EPO’s President also clarified the impact of Brexit on the UPC. He explained that the Unified Patent Court Agreement cannot come into force unless it is ratified by 13 states. These 13 states must include France, Germany, and the United Kingdom. Therefore for the UPC to come live at the date announced by the Preparatory Committee, the UK must ratify the UPCA before it leaves the EU. If it does not, Italy could become the third state upon whose ratification the UPC would become operational. Italy is in fact ranked fourth in the EU for patent filings, just after the UK.

Mr Tokarsky explained that everything is ready at technical level. However participating member states need to ratify the Protocol on the provisional application of the Agreement on the Unified Patent Court. Mr Tokarsky particularly insisted for the states that already have parliamentary approval to actually ratify the Protocol. He also highlighted that the necessary ratification must take place before the next Competitiveness Council meeting on 29th May. Indeed the UPC requires a minimum of six months to get ready and become operational.

Mr Tokarksy also expressed the Commission’s hopes all EU countries which participated to the enhanced cooperation ratify the UPCA. Similarly the EU commission wishes for most participating member states to ratify the Unified Patent Court Agreement by the end of 2017. To that effect, the EU Commissioner called all states to complete their ratification without further delays. Mr Tokarsky likewise appealed to all EU institutions, and more specifically the EU Parliament, to encourage states to work in that direction.

Mr Rapkay a contrario delivered a less optimistic speech and cast doubts as to a quick ratification by the UK.

The Unitary Patent Package and SMEs:

This committee meeting was also an opportunity for the EPO and the EU Commission to underline their commitment to SMEs. Mr Batistelli insisted that the UPC would be very beneficial to SMEs across the EU. It will in fact simplify proceedings and allow for an EU wide enforcement of the court’s decisions, including injunctions. He also highlighted that the cost (around 5,000 euros for 10 years) and the increased legal certainty brought by the Unitary Patent will allow SMEs to better protect their intellectual property rights. Additionally, Mr Takarsky explained that the EU commission is now developing a specific strategy for SMEs to develop their IP rights as reflected in the EU annual report 2016.