The Dream Is Veering Away: the Unified Patent Will Still Have to Wait

Author : Renata Anduziene, Partner Consultant at METIDA
londeThe recent three years have shown a substantial progress in introduction of the Unified European Patent System. Until very recently, there were proper reasons for believing that the unified patent would come into force already at the end of 2016 or at the beginning of 2017. Unfortunately, the events that took place in the United Kingdom in June have significantly adjusted this optimistic forecast.

For the Unified Patent System to be implemented, the Agreement on a Unified Patent Court must be ratified by at least 13 member states. Please note that today the afore-mentioned agreement has already been ratified by eleven member states. It is expected that Slovenia will become the twelfth member state which ratifies the Agreement. On 30 September the President of Slovenia signed a draft legal act authorising Slovenia to ratify the Agreement on a Unified Patent Court. In Italy, the progress of preparation for ratification of the Agreement has also gained momentum. On 14 September the Italian Chamber of Deputies approved the draft legal act authorising Italy to ratify the Agreement on a Unified Patent Court. As for the Baltic States, Estonia will be the first state which will ratify the Agreement and the ratification is expected already this year. The date of ratification of the Agreement by Lithuania has also been announced, i.e. 1 July 2017. It may seem that there are more than enough countries that will ratify the Agreement in the near future; unfortunately, ratification by the afore-mentioned states is not sufficient. France, Germany and the United Kingdom are the key “players” in this system; these three countries must be among the thirteen member states that must ratify the Agreement.

In France, this procedure was accomplished some time ago, i.e. the Agreement was ratified on 14 March 2014. Germany is also ready for ratification, but it seems that it is still waiting for the decision of the United Kingdom.

Everyone knows that on 23 June the United Kingdom voted for leaving the European Union. The two-year period, during which the United Kingdom must prepare for withdrawal from the European Union and reach an agreement on further cooperation with the EU, has already started. What influence this withdrawal will have on the patent system? It should be pointed out that such decision of the United Kingdom will not have any consequences for the current European Patent System: the valid European patents and patents extended to the United Kingdom will continue to be valid in this country. Nevertheless, the future withdrawal of the United Kingdom from the EU has become a major obstacle for the objective to implement the Unified Patent System in the near future. Today the United Kingdom is still a member state of the EU and there exist no legal obstacles for ratification of the Agreement; quite the contrary, the European Patent Office and other member states constantly encourage the United Kingdom to ratify the Agreement as soon as possible. Theoretically, the United Kingdom could ratify the Agreement and be a part of this system for two more years; however, it is evident that this country will not rush to making the decision. One of the greatest fears of the United Kingdom is that if it ratifies the Agreement today when it is still a member state of the EU, it may be expelled from the Unified Patent System after its withdrawal from the EU. According to the current rules, only the EU member states are entitled to be a part of the Unified Patent System.

Definitely, the scenarios of further participation (stay) of the United Kingdom have been discussed. One of the options is to accept that we will have to wait for the unified patent and look for solutions and assure the United Kingdom that it may belong to the system as long as possible, i.e. after its withdrawal from the EU. Another option is not to wait for the decision of the United Kingdom and accomplish the ratification process without the United Kingdom. This option implies that the Agreement on a Unified Patent Court must be revised so that the requirement that the United Kingdom must be among the thirteen member states that must ratify the Agreement would be deleted and the central division of the Unified Patent Court should be relocated from London. If the Agreement is amended, the member states should re-ratify the Agreement.

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