European Union: The Unified Patent Court And Unitary Patent — A Status Report

Last Updated: 7 May 2012
Article by Phil Carey

As we have previously reported1, the proposal for a unified patent litigation system2 for the EU in its current form has met with concern from judges, practitioners and industry alike. Many commentators, including us, have stated the system as a whole has not been thought through properly. Consequently, it risks not serving its purpose of providing a cost-effective, yet high quality, forum for patent litigation in Europe.

When we last reported on the status of the unified patent system, the sense was that the institutions of the EU, notably the Commission and the (then) Polish Presidency of the Council, were hell bent on obtaining agreement on the legislative package by the end of 2011, and that the EU's "political will" to secure an agreement without further delay meant the concerns over the system were falling on deaf ears.

Indeed, the Polish Presidency had signalled its intention to organise an initialing ceremony in Warsaw for the end of December where the text of the agreement on the unified court would be finalised.

So, where are now?

The short answer is that the initialing ceremony has not happened. The message from the Council was that the failure to sign off on the legislative package in December was a result of the Member States having failed to agree on the location of the Central Division of the unified court - what has been called in a Council statement "the last outstanding issue in the patent package". The Council also reported on the commitment of the Member States to reaching a final agreement on this point "by June 2012 at the latest"3.

Whilst the location of the Central Division is, of course, an important consideration, it is rather bewildering that the substantive concerns voiced by the actual users of the patent system remain unacknowledged (publicly, at least) by the EU institutions having conduct of this most important initiative.

It does seem, however, that the UK Parliament is sitting up and taking notice of the current state of affairs. The European Scrutiny Committee of our House of Commons opened an inquiry into the unified patent court in January of this year.

"The Scrutiny Committee assesses the legal and/or political importance of draft EU legislation... Ministers should not vote in the Council of Ministers on proposals which the Committee has not cleared or which are awaiting debate."

The Scrutiny Committee has held two evidence sessions to date, first seeking the views of representatives of the legal profession in Europe on the current proposals, and then requesting that the UK Government explain its position.

The inquiry is ongoing, but it appears to us that the Scrutiny Committee is asking itself the right question – how can it be that the only outstanding issue, according to the Council, is the location of the Central Division, when so many important concerns over the substance of the proposed system seemingly remain unresolved?

Through its evidence to the Scrutiny Committee, it does appear that the UK Government is engaging with the (now Danish) Presidency of the Council on some of the most pressing concerns with the proposed system, namely the possibility of the bifurcation of infringement and validity proceedings, and the inclusion in the EU Regulation on the unitary patent right of substantive provisions regarding infringement (and the spectre of the EU Court of Justice being asked to interpret those provisions).

Furthermore, the indications from the Scrutiny Committee's minutes are that the UK Government is taking a position whereby it will not sign the unified patent court agreement until the Rules of Procedure for the system have been (close to) finalised. This, if maintained, is a welcome stance from the UK Government. Given the apparent refusal of the EU legislature to rethink the overall architecture of the unified system4, it seems that it may well fall on the Rules of Procedure to ensure that the worst of the potential inequities of the proposed system are, at least to some degree, mitigated.

Finally, the UK Government has suggested, in its evidence to the Scrutiny Committee, that the June 2012 deadline mentioned above for sign-off on the legislative package might slip.

In conclusion, we wait to see what progress can be made on the draft Rules of Procedure for the unified court and hope that, now the Council's self-imposed deadline of December 2011 for sign-off on the package has passed, a more circumspect approach towards the European patent system will now be taken.


1 See here and here.

2 The so-called "patent package" comprises an EU patents court, and a unitary EU patent right.

3 Press Release following the 20-21 February 2012 meeting of the Competitiveness Council

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.