At the beginning of 2017 the Unitary Patent and the Unified Patent Court (often referred to as UP/UPC package) was almost ready to start.
Ratifications of the UPC treaty were taking place at healthy pace, Italy decided eventually to join the system, too, and the European Unions institutions were finalizing the last pieces of legislations necessary to accommodate the Unitary Patent into the basket of the EU rights.
Then came Brexit.
All of a sudden, timetables became uncertain, and a big question mark hovered on the future of the new system, in particular of the UPC.
It took some months for the concerned entities, organizations and persons to rearrange their views and possibly find a way forward notwithstanding Brexit.
There was no time, however, to find a consensus on the approach, remedies and constructions aimed to start UPC altogether, possibly keeping UK into the system: unexpectedly a further stop came from Germany, where a petition was lodged at the Constitutional court pointing out that the whole system was contrary to the German constitution and its ratification by the Parliament did not comply with the relevant laws.
The petition lead the court to ask the government not to proceed with the ratification until the issues have been solved, something that could take months and even years, in case the matter is ultimately submitted to the European Court of Justice (a possibility that some commentators do not rule out).
Of course timing is crucial, as the deadline for Brexit is approaching and it seems fairly difficult that the system starts without UK.
It is therefore necessary to be prepared for multiple possibilities. This applies to patentees and economic players at large: they must devise strategies capable of be successful both in case the UPC starts and in case it is frozen and set aside for a long time.
This applies also to legal counsels and law firms, which must as well provide the clients with a guidance effective in all the possible scenarios.
In this connection it is extremely important to keep contact with the peculiarities, i.e. advantages and disadvantages, of each EU jurisdiction and local system. Apparently they are not going to be superseded by the new system tomorrow or in the very near future, so that any patent strategy should leverage on local measures and practices.
This was true also in the past and contributed for example to make Italy, together with some other EU jurisdictions, a preferred venue to collect evidence of the infringement, and at certain extent, to obtain seizure orders and preliminary injunctions.
This approach is still valid, provided that the action is framed and designed from the beginning to continue, possibly, in the new system, so that a UPC judge does not feel uncomfortable with the steps taken in the previous phases of the dispute.
This approach puts a new burden on legal advisors, facing the need to comply with multiple standards, possibly for an extended amount of time.
It is indeed an interesting challenge, which we are ready to tackle, preparing for the UPC and at the same time leveraging on the advantages of the current current system, as it is now and as it is going to change in the next months.