Unitary Patent: coming in 18 months?

“Within the next 18 months this will be a reality…”

Despite the idea of the Unified Patent Court (UPC) is not in its infancy, it still has way more issues in practice (especially about putting it into practice) than acceptable. At the open meeting of the AIPPI’s Standing Committee on the Unitary Patent and Unified Patent Court (within the framework of the 46th World IP Congress); transitional measures, patent term extension, the appointment of judges were all identified as key issues of concern. Nicolas Morey (of the EPO), Judge Peter Neier-Beck (of the German Federal Court of Justice), Tina Chappell (of Intel) and Michael Frohlich (of BlackBerry) also showed up at the panel.

Ansley Merelle Ward, the secretary of the Committee said that there is a risk of conflicting decisions and a race to court, regarding to the most solicitous Article, the 83th. „The system is in danger of becoming the very thing it was intended to avoid” she said. The Committee has made two proposals concerning jurisdiction of patent issues and sustentative law issues under Article 83: the AIPPI members should urge the participating member states to take effective measures to clarify the meaning and effect of it, and to take effective measures to amend their national patent laws to harmonize with the UPC Agreement that differ from national laws.

The ratifications are expected at the end of 2016. Before the Agreement can come into effect, at least 13 member states (including Germany, France and the United Kingdom) need to ratify it. In the first wave only 25 of the 28 EU member states are taking part in the enhanced cooperation, Croatia and Spain are not planning to join to the Agreement, unlike Poland, who has only indicated it is improbable to join at the beginning.

As Judge Meier-Beck highlighted, there are not enough well-experienced judges, since most of the national judges have way less familiarity with patent disputes. (That is maybe partly the reason why some of the potential ones already begun their courses at the official Training Centre in Budapest.)

As Thierry Calame, the Committee co-chair said, AIPPI has two consultations underway: one concerns the relationship between UPC and EPO opposition proceedings; and the other one concerns UP renewal fees and UPC court fees.

Details have been sent to national and regional groups, with response due by November 16, and anyone interested is urged to take part. As Alan Johnson said: “within the next 18 months this will be a reality, and decisions have to be made”.