The Unitary Patent – a new European patent with unitary effect across most EU states – is inching closer with recent UK ratification of the necessary legislation.

German ratification of the necessary legislation is now the main hurdle to the entry into force of the new Unitary Patent (UP) and the associated Unified Patent Court (UPC), which will be established to hear UP cases and traditional European patent cases.

German ratification is on hold whilst a case challenging the constitutionality of the UPC at the German Federal Constitutional Court is pending. There is no published timetable for the progress of this case. With UK ratification completed, interest in the case is mounting and there may be political pressure for a swift resolution.

The soonest it is thought possible that the UP system could enter into force is early 2019.

The UK is due to leave the EU (Brexit) in March 2019, but is one of three EU states (along with France and Germany) that must participate at the inception of the new UP system according to the current legislation. If the UP system does not enter into force before Brexit, it is possible that new agreements and legislation would be required before the UP system can be established.

Outstanding Legislation

The principal legislation that must be ratified by Germany for the UP system to enter into force is the "Agreement on a Unified Patent Court" (the UPCA) which defines how the court will operate. However, there are two further pieces of legislation that are required before the UPC can become operational. The "Protocol on Privileges and Immunities" (the PPI) is necessary for the UPC to operate in its respective locations, and the "Protocol on Provisional Application" of the UPC (the PPA) is necessary for certain preparatory activities to be completed, notable the recruitment and training of judges.

Sufficient ratification of the PPI and PPA by participating states is nearly complete, with German ratification (as delayed by the court challenge) likely to be the bottleneck.

Therefore, the preparatory activities under the PPA (e.g. recruitment/training of judges) are unlikely to commence any earlier than full ratification of the other legislation.

Further Information on the new Unitary Patent system

Whilst traditional European patents are a bundle of national rights, the new Unitary Patent (UP) will be a single right having unitary effect across most EU states. The traditional European patent system will continue alongside the Unitary Patent system.

The Unified Patent Court (UPC) will be established to hear UP cases and issue judgements effective throughout the UP participating states. The UPC will also have jurisdiction over traditional European patents which are validated in UPC participating states. For a transitional period, patentees can opt-out their traditional European patents from this jurisdiction (but not UPs).

For further information on the new UP system, please refer to our dedicated website.

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.