In early 2013, the European Union adopted a package including two regulations that will create a European Patent with unitary effect (“Unitary Patent”) for participating states, and may lower translation and post-grant costs for parties electing to use the Unitary Patent. The package also includes a Unified Patent Court (UPC) Agreement (UPCA—a treaty) for signature by the interested EU states that will create a Unified Patent Court, which eventually will handle all litigation involving patents issued by the European Patent Office that are validated in participating EU states, including both the regular, nationally validated European Patents and the new Unitary Patents.
Because Spain and Italy were unwilling at that time to give up translation into their languages, the EU package proceeded under the principle of “enhanced cooperation,” which permits a majority of EU states to proceed by agreement when unanimity cannot be achieved. Of the 27 EU member states in 2013, 25 indicated their intent to participate.
Italy initially did not intend to participate in the Unitary Patent, but did sign the UPC Agreement. After four decisions by the Court of Justice of the European Union (“CJEU”), rejecting objections by Spain and Italy to the UP and UPC, Italy sent a letter to the EU Council on July 7, 2015, asking to participate in the UP and on September 30, 2015, the EU Commission announced that Italy had joined the Unitary Patent scheme. (See hereand here). Rumors began circulating in Spain in August 2015 that it also was moving toward UP and UPC participation.
Final EU regulations establishing the Unitary Patent and related translation regime, and the final version of the UPC Agreement were published January 11, 2013. The Agreement was signed by all EU states at that time except Spain and Poland.
The Unitary Patent regulations specify that they will be effective on the same date as the UPC Agreement (UPCA). That agreement and the Unitary Patent regulations will become effective for the ratifying states approximately three months after minimum ratification by 13 EU states including France, Germany and the United Kingdom. As of September 15, 2015, eight states have officially reported their ratification: Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal and Sweden. The Netherlands has started the ratification process and has posted a draft ratification proposal (in Dutch) online. The United Kingdom has given the Secretary of State authority to ratify the UPCA and has signed a lease on space to be occupied by the London part of the UPC Central Division and a Local Division. Germany is expected to delay depositing its ratification until the UPC is ready to open. Because of the work necessary to establish the new court, the agreement and regulations are now not expected to come into force before the last half of 2016 or early 2017.
October 1, 2015 the UPC Preparatory Committee announced that disclose a Protocol on provisional application of parts of the UPC Agreement had been signed. It allows some parts of the UPC Agreement to be applied early, including the recruitment of judges, testing of IT systems and early registration of opt-out demands. The announcement also indicated that the target date for UPC opening is “at the start of 2017. (See our Chronology page).
At this writing, the UPC Rules of Procedure are still under consideration by the Preparatory Committee and are expected to be published in the fall of 2015. Draft Rules on the European Patent Litigation Certificate were published with an explanatory memorandum on September 9, 2015.
For more information, please see our EU Official Documents, Resources and FAQs 27-40. See the European Council’s website here for information on the progress of ratifications as they are officially deposited with the Council and reported to the Commission.