A lot of progress has been made in 2014 with the European Unitary Package – the European Unitary Patent (EUP) and Unified Patent Court (UPC). However, the scale of implementing such a system also became apparent in 2014, pushing the predicted date when the court will open its doors to “no earlier than the end of 2015” and more likely mid to late 2016.
The hurdles towards implementation are reducing in number and the political momentum behind the proposal has mostly continued from the initial signing of the Agreement at the start of 2013. This article provides a brief summary of the progress and changes that occurred in 2014.
After the solitary ratification by Austria of the Unitary Patent Court Agreement (“the Agreement”) in 2013, a further 5 European countries (including France) ratified in 2014. An additional 7 countries, including Germany and the UK, will need to ratify the Agreement before the UPC and EUP come into force.
The UK have passed the law initiating the first steps of ratification, while Germany is drafting changes to its law to enable ratification. It is likely that either or both of Germany and the UK will hold back ratification until the UPC is ready to open its doors from a practical perspective.
Ireland are due to hold a referendum on ratification, probably in May 2015. Meanwhile, the Czech Republic reportedly will not initially ratify the Agreement. It is reported that the Czech Republic believe that the quality of machine translations are not of sufficient quality to enable many in the Czech Republic to understand the translation.
OPT-OUT FEE FOR UPC AND RENEWAL FEE FOR EUP
The various fee levels for the UPC and EUP are keenly anticipated. In particular, there has been a lot of discussion on:
- how much will it cost to opt out “traditional” European patents from jurisdiction of the UPC; and
- how much will it cost to renew an EUP.
All traditional European patents will automatically fall under the jurisdiction of the UPC, even if they were granted before the UPC comes into force, unless the patent proprietor requested to opt-out (and pay a fee). There were rumours that the opt-out fee would be an enormous €30,000 per patent. However, it is currently thought that the opt-out fee will be small to reflect administrative costs. A fee of, say, €100 will still create a large bill for patent proprietors wishing to opt-out a significant proportion of a large European patent portfolio.
The EPO are responsible for deciding the renewal fees of the EUP. As mentioned last year, the fee level is likely to be equivalent to renewal fees in around 5 or 6 countries. The EPO will announce the level of fees around mid-2015, having run several renewal fee simulations.
SPANISH CHALLENGE AT THE CJEU
A remaining uncertainty is the legal challenge brought by Spain at the Court of Justice of the European Union (CJEU). Spain believe the Agreement contravenes European Union law. However, Advocate General Bot has given his opinion that the challenge should be dismissed and has further encouraged more countries to ratify as soon as possible. The CJEU often follows the Advocate General’s opinions, although it is not bound by their opinion in any way. The CJEU publish its decision later this year.
The 17th draft Rules of Procedure of the Unified Patent Court were published in October 2014 and discussed in a public meeting. It is thought that the Rules will not significantly change, bringing further certainty to how the court will operate. The 17th draft Rules sees the reinstatement of a previously deleted Rule relating to bifurcated procedures where a counterclaim for revocation is sent to the central division court, while the infringement proceedings remain in the local division court and not stayed. In these circumstances, new Rule 40(b) specifies that the revocation action will be accelerated and the central division will endeavour to set a date for the oral hearing on revocation action before the date of the oral hearing of the infringement action.
Meanwhile, the Rules relating to the EUP were approved in principle by the EPO Select Committee (aside from financial issues) in their latest meeting. There has also been progress on the Rules relating to the European Patent Litigation Certificate, a certificate enabling European Patent Attorneys to represent parties in the UPC.
WHAT’S LEFT TO DO?
A considerable amount of work remains on the practical aspects of the UPC and EUP, such as procuring and establishing the IT systems, selecting and training judges, and picking suitable locations for the court. Preparation of these aspects is likely to be time-consuming (and hence the delay to implementation of the UPC). However, it is hoped that preparations can be concluded by the end of 2015.
In addition, the committees working on the UPC and EUP are looking to finalise all the draft Rules around mid-2015, including setting of fees. The level of EUP renewal fees, in particular, will have a large influence of the uptake of the EUP.