The establishment of a Unitary Patent system in Europe was one of a package of measures agreed by the EU member states in 2011. The agreement was over 30 years in the making and paved the way for a Unified Patent Court based in London, Paris and Munich — but the system itself is yet to materialise.

What is the Unitary Patent?

The Unitary Patent system promises to provide a patent proprietor with easier and cheaper access to effective patent protection in Europe. A traditional European patent is essentially a bundle of national rights which require separate renewal, enforcement and (in some cases) translation. The Unitary Patent enables a proprietor to make huge cost savings on all of these. It’s supranational and singular, and the Unified Patent Court provides access to legal and technical specialists and streamlined procedures. All of this is expected to make the EU a more attractive proposition to innovative businesses and increase its global economic competitiveness.

Back in 2017, progress towards formal ratification by the EU member states had been slow (to say the least) but sufficient for the launch date to be within reach. Plans for implementation by the European patent office and other bodies were well-advanced and patentees were beginning to consider their future patenting strategy in Europe. That was until a complaint was filed at the German Constitutional Court in July 2017, followed quickly by opinions from a number of interested parties.

Where is the Unitary Patent?

Amidst uncertainty over the UK’s geopolitical standing post-Brexit, the UK Government took the opportunity to ratify the Unitary Patent system in April 2018 — leaving the constitutional complaint and German ratification as the only major impediments to the system being launched. However, with the UK’s membership of the EU seemingly about to come to an end, a failure to have the Unitary Patent up-and-running beforehand would make its fate very uncertain. As the wait for a ruling from the German Constitutional Court goes on, the potential timetable for launching the Unitary Patent appears to be being squeezed into a diminishing timeframe.

Recently, it was reported that the German Constitutional Court intends to make a ruling on the complaint “this year”. If the complaint is dismissed, the procedure for ratification by Germany can be completed and the Unitary Patent system can launch. If the complaint is found to be justified, there could be a further delay to ratification by Germany. We might even see the end of the Unitary Patent system as it’s currently envisaged.

The verdict

Regrettably, the unresolved constitutional challenge in Germany and the political uncertainties in the UK raise significant doubts over whether the Unitary Patent system will be operational in the foreseeable future — or even at all. Should the Unitary Patent ever materialise, the role which would be played by the UK post-Brexit is very unclear.