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 Justice Committee deciding to approve an Order today.
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.
A draft Statutory Instrument (The Unified Patent Court (Immunities and Privileges) Order 2017) in the UK Parliament (laid on 26 June 2017, reported here) is awaiting debate in the House of Commons (which is currently in recess, returning on 9 October). However the Scottish Parliament also had to give effect to the necessary legislation.
This takes the shape of a draft Statutory Instrument (The International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 . The International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017. The Scottish Parliament's Delegated Powers and Law Reform Committee (DPLR) has already considered the draft Statutory Instrument ('the SI') and passed it at that stage. The next step was for the Justice Committee to consider it and make a recommendation. The UK and the Scottish Orders are both required 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 today and was approved.
Subject to final Parliamentary 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.
On the whole this must be good news for Scotland and the UK. 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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