The Unitary Patent – is its future about to be decided?

October 18, 2019

The introduction of a patent system (Unitary Patent) capable of granting a single patent that is valid in multiple EU member states has been delayed for some time due to issues within individual countries. This article explores the various causes of this delay and whether it is likely to be resolved.

What is it and why isn’t it already in place?

Over many years, there have been several attempts to introduce a Unitary Patent and Unitary Patent Court (UPC) in Europe. This would allow a single European patent to be granted which is valid in multiple participating EU member states, providing a more cost-effective and centrally administered system relative to today.

Although significant progress has been made, several previous attempts experienced difficulty, forcing them to be abandoned. The jury is still out on whether the current attempt will follow suit, with notable issues currently within both Germany and the UK.

Although the details of Germany and the UK's issues are different, their impact may well be the same – the attractiveness of the Unitary Patent will be influenced by number of countries in which it is valid, and hence, in which it provides protection. Whether the current Unitary Patent proposal is successful or not may therefore come down to what happens in Germany and/or the UK.

Significant events look likely in both countries in the next few months…

What is happening in Germany?

For some time, the German Government has been prevented from ratifying the UPC due to an objection going through the German Constitutional Court. This case remains on the list of cases for 2019 and will therefore hopefully be completed in the next few months. The German Government has also recently gone on record as saying that they continue to support the Unitary Patent in answer to questions raised relating to why the government is spending money in preparation for its implementation.

In Germany, ratification appears likely, subject to the judgement of the constitutional court.

Will Brexit affect UK participation?

Similarly, although the UK has ratified the UPC and Unitary Patent, as the UPC and Unitary Patent relate to EU member states, it is not clear whether the UK Government’s intention to leave the EU on 31 October 2019 will prevent the UK participating. This may be decided based on the manner in which the UK leaves and the closeness of ongoing relations between the UK and the EU. The outcome of current Brexit negotiations in the run-up to the 31 October deadline may therefore determine UK participation.

Interestingly, support for the UK participating as a member of the Unitary Patent and UPC does not necessarily align on Leave vs. Remain lines. For example, Boris Johnson (the then Foreign Secretary) signed the UK’s ratification documents in April 2018, almost 2 years after the June 2016 referendum in which he co-led the Leave campaign. Another Johnson family member and Remain supporter (Jo Johnson) has also played a part in championing the Unitary Patent and UPC in the UK, in his role as IP minister, prior to his resignation in early September 2019. (Chris Skidmore is the new IP minister – a position he has previously held).

Is further delay still possible?

It is certainly true to say that the Unitary Patent has been a “few months away” for… more than a few months.

Whether there will be any further delays at the German Constitutional Court remains to be seen, though this time, in the UK at least, it is probable that the way forward will become clearer in the next months.

The UK Government has stated that Brexit will happen “do or die” on the 31st October, while the EU’s appetite for a further extension to Article 50 will likely diminish if progress towards a deal is not perceived as being made. The current Brexit impasse is therefore neither sustainable nor desirable and must surely be soon resolved one way or another.

Although it is possible that the Unitary Patent goes forward without the UK, it may well be that the solving of this impasse, necessary for much wider reasons than the intricacies of patent law, will influence the future of the Unitary Patent.

No one can confidently say that there will be no more delay, but maybe this time things will be different.

We will watch developments with interest.

Get in touch

If we can offer any assistance in connection with IP in the UK at this time or in the future, please do not hesitate to contact your usual contact at Swindell & Pearson or Noel Sanders at [email protected]