As reported here a few months ago a major breakthrough was achieved when the 25 EU Heads of States or Governments of the participating Member States reached a compromise agreement concerning the location of the Central Division of the new proposed Unified Patent Court. It was agreed to split cases heard by the Central Division between London, Paris and Munich depending upon the technical subject-matter. A statement from the European Council dated 29 June 2012 is available here.
At the same time it was requested that certain infringement provisions (Articles 6-8) in the draft Regulation concerning the creation of Unitary Patent Protection ("UPP") be deleted. The UK delegation in particular was concerned that the inclusion of the infringement provisions would empower the Court of Justice of the EU (formerly known as the "ECJ"), which is not a specialist patent court, to consider matters of patent law referred to it by the specialist European patent courts. One of the concerns was that this would introduce lengthy delays into patent litigation trials.
The Legal Committee of the EU Parliament ("JURI") objected to the proposed deletion of Articles 6-8 from the draft UPP Regulation prior to the European Parliament breaking for the summer recess. It seemed as if matters would enter a stalemate throughout Autumn 2012.
However, on Monday 19 November 2012 the deadlock was broken when the 25 Member States participating in the enhanced cooperation agreed via the Council of Permanent Representatives ("Coreper") to delete Articles 6-8 from the draft UPP Regulation and to replace these Articles with a new Article 5a (posted here).
The deleted Articles 6-8 from the draft UPP Regulation were effectively transferred to the draft agreement on the Unified Patent Court ("UPC") as Articles 14f-14h. The draft UPC agreement is available here.
The Legal Committee of the EU Parliament held an extraordinary meeting that same evening (19 November 2012) and gave its agreement to the package including the Unitary Patent Protection Regulation.
On the 10 December 2012 the Unitary Patent Protection Regulation is expected to be approved by the Council of Ministers.
Then on the following day, 11 December 2012, there will be a plenary vote in the EU Parliament which is expected to agree the UPP and associated Language Regulations.
On the same day (11 December 2012) the non-binding opinion of the Advocate General is due to be published on cases C274/11 and C295/11 in relation to the legal challenges by Spain and Italy to the enhanced cooperation process adopted by the 25 Member states. A final decision of the Court of Justice of the EU is unlikely to issue for several months.
At present, it seems likely that the UPP and associated Language Regulations will be adopted on 21 December 2012.
If the Regulations are adopted, then it is expected that on 18 February 2013 Member States will be able to start signing the treaty establishing the Unified Patent Court. The treaty will require ratification by the UK, France and Germany and a further 10 Member States.
If any Member State has any reservations concerning the Unitary Patent and Unified Patent Court then they can slow down the process by delaying signing the treaty establishing the UPC.
However, the EU Commission remains confident that ratification of the UPC can be completed by 1 November 2013 with the first unitary patents being granted from 1 April 2014 onwards.