The first ever truly pan EU patent system, the new Unitary Patent Court ('the UPC'), is one step closer to becoming a reality as a result of the Scottish Parliament deciding to approve an Order today.
As previously reported a draft Statutory Instrument (The International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017) was considered and approved on 26th September 2017 by the Scottish Parliament's Justice Committee. As such it required next to be given final Parliamentary approval to come into effect. The Scottish Order ( as well as the equivalent English one (The Unified Patent Court (Immunities and Privileges) Order 2017) requires to be passed in order to give effect to the Protocol on Privileges and Immunities of the UPC which in turn will allow the UK to ratify the UPC Agreement.
The Scottish order was debated by the Parliament today and given final and almost unanimous approval. This gives the green light for the UPC to go further and avoids the difficulties that could have resulted if the SI had been rejected – not least that the UK could not ratify meaning the whole UPC project could have been put at risk.
The UPC has taken a long time to get to this stage (over 25 years ) and had been set to go live later this year. It is intended to improve the current European patent system under which parties have to litigate patent disputes in individual national courts in the relevant member state. This is costly and can lead to inconsistent decisions. In contrast, UPC enforcement and validity actions will be in one single court and will take effect in all 25 participating EU member states. This should to make it easier, less expensive and more efficient to obtain and enforce patents right across the EU.
The prospect of Brexit cast the UK's membership of the UPC into doubt. Before the UPC can come into force, both the UK and Germany must still ratify it. The UK Government indicated last November that it will ratify the UPC, which made it clear that it wishes the UK to remain a party to it post Brexit.
Once again this must be good news for Scotland and the UK as a whole. Scottish SME's in the tech and life sciences sectors should stand to benefit as they will be able to participate on a pan EU scale at what are hopefully going to be affordable costs. As such, it should avoid them having to continue to rely on the old more cumbersome and expensive EU patent system in order to gain their desired level of patent coverage in the EU and the UK (post Brexit).
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