On 6 August 2015 a presidential decree was published announcing Portugal’s ratification of the Unified Patent Court (UPC) Agreement.
Subject to formal deposition of the instrument of ratification, Portugal will become the eighth EU member state to have ratified the Agreement, joining Austria, Belgium, Denmark, France, Luxembourg, Malta and Sweden.
A total of thirteen member states, which must include France, Germany and the UK, need to ratify the Agreement for it to enter into force. France has already ratified the Agreement and it is expected that Germany will begin work on the ratification process after the summer parliamentary recess.
The British Government has committed to holding a referendum before the end of 2017 on the UK’s continued membership of the EU. Despite this, the UK Intellectual Property Office has recently confirmed that preparations for British ratification of the UPC Agreement will continue, rather than being suspended until after the referendum. UK ratification is currently expected to take place at some point in 2016 and current opinion polling suggests that the pro-EU campaign is expected to win the referendum.
Earlier this year the CJEU dismissed the last of several legal challenges to the Unitary Patent package which had been raised by Spain. Following this, Italy (which had originally joined with Spain in opposing the Unitary Patent package) has also announced its intention to participate in the unitary patent and unified patent court systems.
Italy’s change of position will leave Spain and Croatia as the only EU member states which are parties to neither the Unitary Patent Regulation nor the UPC Agreement. Croatia was not an EU member at the time that the Regulation and Agreement were drawn up, and is widely expected to sign up at a later date. Spain is not currently expected to change its position. Meanwhile, Poland is a party to the Regulation but has announced that it does not intend to sign up to the UPC Agreement, which in practice means that protection via a unitary patent will not be available in Poland.
In other recent developments, the EPO has formally adopted the so-called “True Top 4” proposal for unitary patent renewal fees. The annual renewal fee for a unitary patent under this system will be equal to the combined annual renewal fees for the UK, Germany, France and the Netherlands under the current system. Details of the fees are available on the EPO website. Work on the Rules of Procedure for the Unified Patent Court continues, with the Rules now in their eighteenth draft. The Dutch Government has also recently announced its intention to host a local division of the Court in the Netherlands.