There have been various recent developments in the preparations for the new unitary patent (otherwise known as the "European patent with unitary effect") and the Unified Patent Court system which feature on our Unified Patent Court and Unitary Patent pages of our website:

Full steam ahead? 

  • Luxembourg deposits instrument of ratification of UPC Agreement;
  • Italy signals formal willingness to enter into enhanced cooperation in relation to the Unitary Patent;
  • ESMA's challenge to constitutionality of  Belgian government's ratification declared inadmissible;
  • Portugal and the Netherlands take initial steps towards ratification with a motion in parliament and a consultation respectively; but
  • Delay looks likely for Irish referendum

On 22 May Luxembourg deposited its instrument of ratification of the Unified Patent Court Agreement (UPCA). Seven countries have now fully ratified (Austria, Belgium, Denmark, France, Luxembourg, Malta, Sweden). 13 are required for the UPCA to come into force. Further to our Latest News of 9 March 2015, Italy, which had already ratified the UPCA but had refused to participate in the enhanced cooperation creating the unitary patent right (UP), has now indicated that it will participate, meaning that the UP should be effective in every EU Member States other than Croatia and Spain which are not participating and Poland which has said it will not ratify the UPCA (and thus the UP will not be effective there, despite Poland's participating in the enhanced cooperation that established the UP). See our page on where the UP will have effect here.

In April Portugal took the initial steps towards ratification, although it has yet to deposit an instrument of ratification. The Netherlands is also considering ratification and conducted a public consultation in May. Ireland's government is required to hold a referendum in order to ratify the UPCA which will  involve some transfer of jurisdiction from the Irish courts, but there have been recent comments from a Minister in the Irish Government that there will be no more referenda before the end of this Irish Parliament (elections are due on or before 3 April 2016). This may delay any ratification from Ireland until mid to late 2016. However, ratification by Ireland is not a pre-requisite for the UPCA to come into force, unlike the requirement for ratification by France, Germany and the UK; the balance of the 13 states required to ratify can be made up of any of the other contracting states. Once in force, the new UP and UPC system will only apply in those contracting states which have ratified of course. 

The challenge mounted by the European Software Market Association alleging the unconstitutionality of the Belgian Government's ratification of the UPCA (mentioned in our Latest News of 7 April 2015) has been declared inadmissible (it was apparently filed outside required deadlines for challenges to constitutionality of laws ratifying treaties).  Following the failure of the Spanish challenge earlier this year, there appear to be no further obstacles in the way of the establishment of the new system, other than sufficient ratification and the practicalities of setting up the local, regional and central courts themselves.

Unitary Patent Rules 

A consolidated version of the draft Rules relating to the Unitary Patent Protection is now available here.

Unitary Patent renewal fees

The EPO Select Committee has held preliminary discussions on the provisions of the draft Rules for the Unitary Patent fees. A revised proposal to charge renewal fees on the basis of the charges for the top 4 or top 5 most popular validation jurisdictions (Germany, France, Great Britain, Netherlands (and Sweden as the 5th) has been made by the Select Committee, dated 7 May 2015 (for discussion of the initial proposals see our discussion here). This latest proposal is accompanied by a "Comparison of fees and external costs between a European Patent and a Unitary Patent" submitted by the President of the EPO which compares the costs of registering EPs in 1,2,3,4,5,6 or 7 designations and all 25 designations that would be covered by the UP under current participation rates) with the cost of the revised proposal. The comparison assumes that grant is in year 4. The figures show cumulative savings on this basis for 4 or more designations over 20 years although the various assumptions should be taken into account.