European Union: Principal Developments Since Signature Of The Unitary Patent Court Agreement

Last Updated: 2 June 2014
Article by Charles Russell

The Unified Patent Court Agreement (UPCA) was signed on 19 February 2013 by 24 of the then 27 EU Member States. (Bulgaria, Poland and Spain did not sign.) Croatia joined the EU on 1 July 2013 but has not yet signed the UPCA.

Since the UPCA was signed, there have been significant changes in the position relating to the introduction of the proposed new patent regime (i.e. the unitary patent itself and the Unified Patent Court), which are noted below.


The unitary patent is highly unlikely to become operational until the end of 2015 at the earliest – and even then there are serious obstacles to be overcome.

CJEU dismisses challenges by Spain and Italy

Spain and Italy challenged the proposals for the unitary patent system before the Court of Justice of the European Union ("CJEU") (cases C-274/11 and C-295/11) in 2012.

The challenges related to the validity of the Council of the European Union decision of March 2011 authorising enhanced cooperation in the area of unitary patent protection – and if successful would have a major impact on the introduction of the new regime.

Spain and Italy argued, amongst other things, that EU legislation prevented EU Member States from taking advantage of the enhanced cooperation mechanism to create the new patent framework. Essentially they argued that the Council of the European Union lacked the necessary legal competence to establish the enhanced cooperation mechanism and the Council had misused their powers.

On 16 April 2013, the CJEU ruled that both countries' complaints should be dismissed – the CJEU said that the Council of the European Union had the necessary competence to use the enhanced cooperation mechanism and there had been no misuse of power; Spain and Italy's claims were unfounded.

Spain's new challenges

In March 2013, just prior to the CJEU's ruling above, Spain brought two new actions (cases C-146/13 and C-147/13) before the CJEU further challenging the EU Regulations relating to the new European patent with unitary effect. The further challenges related to breach of laws, lack of legal basis for the EU regulations, misapplication of case law (the Meroni doctrine) in regulation and administration of the proposed system and misuse of power.

The outcome of Spain's further challenge is unlikely to be known before 2015.

Rules of Procedure for the Unified Patent Court

The 16th draft Rules of Procedure for the Unified Patent Court (UPC) have been published for information only, taking into account comments received during the public consultation on the previous (15th) draft. The draft rules contain provisions concerning not only the basic procedure for the court but also matters such as opt-out, appeals and bifurcation (where infringement and validity proceedings are determined separately, as is the case in Germany's patent courts). The Legal Group of the Preparatory Committee will now examine the rules at the level of participating EU member states. The Legal Group, in the course of 2014, will seek input of users on all suggested amendments to the text since the written consultation.

Click here for the 16th draft Rules of Procedure.

Proposed amendments to "Brussels I Regulation"

EU Council Regulation No.44/2001 on jurisdiction and the recognition and enforcement of judgments in the European Union (the so-called "Brussels I Regulation") requires amendment for the UPC Agreement to be able to come into effect. On 12 December 2012 EU Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in the European Union was adopted.

However, this did not contain provisions which would enable the UPCA to come into effect. On 30 July 2013, the European Commission ("EC") published its proposal for amendments to the Brussels I Regulation.

The EC proposal should now be formally adopted and become law at the Council of Ministers' meeting in June 2014.

Signatories to the UPCA

Bulgaria signed the UPCA on 5 March 2013. However, Poland and Spain still have not signed the UPCA.

Croatia joined the EU on 1 July 2013 but has not yet signed the UPCA.

This will have no impact on the overall introduction of the new regime.

Ratification of the UPCA

Both Austria and France have now ratified the UPCA (on 7 August 2013 and 14 March 2014 respectively). A further 10 European Union Member States (specifically including Germany and the UK) must ratify the UPCA for the unitary patent to take effect.

In the UK, draft legislation authorising ratification of the UPCA has been included in the Intellectual Property Bill. The next stage will be for the Bill to receive Royal Assent, following which the UK may ratify the UPCA (although ratification is not expected until 2015 at the earliest).

In Belgium, the Belgian Chamber of Representatives has voted to adopt the law authorising Belgium to ratify the UPCA. Ratification is expected before elections on 24 May 2014.

Referendum in Denmark concerning ratification

There will be a Danish referendum on 25 May 2014 on whether or not Denmark should ratify the UPCA (after the Danish government recently failed to secure the necessary majority for ratification).


On 18 March 2014, the fifth meeting of the Preparatory Committee for the Unified Patent Court agreed that the court will not be operational until the end of 2015 at the earliest.

Divisions and Judges

Sweden, Lithuania, Latvia and Estonia have agreed on the creation of a regional division of the Unified Patent Court (UPC). This is the first agreement by a group of Member States who are signatories to the UPCA to set up a regional division; there is expected to be at least one more, for the Benelux countries (ie., Belgium, Netherlands and Luxembourg).

A dedicated training centre for judges for the Unified Patent Court was officially opened on 13 March 2014 in Budapest.

See here for latest news.

Supplementary Documents

See supplementary documents for further information on:

  • A short introduction to the Unitary Patent and the Unified Patent Court
  • The role of the EPO and financial provisions
  • The Unified Patent Court
  • Situations where the permanent long term provisions will not apply (including transitional provisions and opt-out)
  • How valuable will the new regime be to your business
  • Developments since signature of the Unified Patent Court Agreement
  • Translation and language arrangements
  • The 'Unitary Patent'

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.

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