Monday, 30 January 2017

New minister for Intellectual Property on Unified patent court

There is a new minister for Intellectual Property in the UK, Jo Johnson

The previous minister, Baroness Neville Rolfe, made some promising statements about  the UK's intentions to ratify the agreement on a unified patent court (UPC). She said on the one hand that  the UK government is proceeding with preparations to ratify the Unified Patent Court Agreement, but on the other hand that "(...) the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU".

New minister Jo Johnson has confirmed these sentiments and strikes perhaps a slightly more positive note. In a a House of Commons Science and Technology Committee session on 11-Jan-2017, he said "We have taken a decision to proceed with preparations to ratify the UPC Agreement. We believe it is important that we participate in this framework. It has value to UK inventors and businesses and we want to be there at its creation.” He declined to answer how the Brexit might influence this decision though: “These are questions that will form part of the greater discussion of the Brexit negotiations.” (Quotes copied from IP Pro Patents.) 

About a week later, Mr. Johnson submitted an explanatory memorandum to Parliament. The document is an interesting read and stresses the benefits of the unitary patent system. One section to note (section 3.) is the following:

The UPCA establishes a specialised, non-EU patent court under international law with jurisdiction for disputes relating to European patents in 25 European countries. The Agreement is between 25 EU countries (not Spain, Croatia or Poland), the EU is not a signatory, and establishes a court common to the 25 participating countries as an international Organisation with legal personality in each. The UPC is part of the judicial systems of the participating countries in so far as it has jurisdiction over patents valid in their territories. However, the UPC forms a separate jurisdiction to the national court systems and it will not be part of the UK Court system.

This is true, as far as it goes. The unified patent court indeed is not an EU institution. However, it is also the case that the unified patent agreement repeatedly refers to EU law and the EU court of justice. If and how the UK can stay in the UPC after a Brexit is a current debate, and perhaps these are the questions that are part of the greater discussion of the Brexit negotiations that Mr. Johnson ment.

Photo by Myriams-Fotos via Pixabay, under a Creative Commons CC0 license. No changes were made.

Tuesday, 29 November 2016

UK still proceeding with preparations to ratify Unified Patent Court

In a press release the UK intellectual property office states that they are still proceeding with preparations to ratify the Unified Patent Court Agreement. The press release is optimistically titled "UK signals green light to Unified Patent Court Agreement".

It is not all green lights in the press release though. Baroness Neville Rolfe (Minister for Intellectual Property) links the ratification to access to the free market. Is this press release offering ratification of the unitary patent in exchange for access to the free market? Despite the optimistic language, I still do not expect a quick ratification. If the Article 50 exit negotiations will include negotiating the Unified Patent Court Agreement, it will take at least two more years. Assuming of course, the unitary patent does not fall by the wayside in the process.

Photo "Good to go" by Blondinrikard Fröberg via Flickr under a CC-BY 2.0 license.

Tuesday, 22 November 2016

EPO ready for unitary patent

Waiting for the UK

According to a statement of the select committee the EPO has completed the legal preparations for the Unitary Patent. In particular, they have approved how the fees coming from the unitary patent are to be distributed among the participating member states.

At present, it doesn't look like many fees will be rolling in any time soon though. When the select committee will have their next meeting will depend on 'the development of the question of the entry into force of the UPP/UPC at the political level, within the framework of the European Union'. As long as the UK does not ratify the Agreement on a unified patent court, the unitary patent cannot start. The UK may or may not do so, but no news is forthcoming from that front. At the latest the select committee will reconvene in March 2017.

Photo by Unsplash via Pixabay, under a CC0 license; no changes were made to the photo.

Friday, 14 October 2016

Labour asks about UK's intentions for unitary patent

The UK Labour party has sent a list of 170 questions to David Davis, the Secretary of State for Exiting the European Union. The list includes two questions on the unitary patent: questions 110 and 111. Also view WIPR's discussion here

110. Does the government intend to proceed with ratification of the EU agreement to establish a Unified Patent Court, in the agreement’s present form; and if not, what steps is the government taking to negotiate an alternative agreement to which it would be willing to sign up? 
111. If the Unified Patent Court (UPC) goes ahead, will the Human Necessities seat of its Central Division continue to be located in London, as prescribed in Article 7(2) of the UPC agreement?

The first questions reflects the basic choice the UK now has to make. Does it want to make an effort to stay in the unitary patent, and if not is it worth the trouble to ratify just to leave later on?

If the UK wants to stay in the unitary patent system after Brexit, it seems likely to me that some kind of agreement is needed. If not a new agreement outright  the users will need to see something on paper to restore confidence that their unitary patents will be valid in the UK.

Prime Minister Theresa May has said that she does not want to jeopardize her negotiation strategy. So I  don't expect too much of the answers. Who wants the unitary patent more: the continent or the UK? Could the unitary patent become a bargaining chip?

Photo by geralt via Pixabay under a CC0 license (no changes).

Thursday, 15 September 2016

The Netherlands ratify unified patent court agreement

The Netherlands have deposited their instrument of ratification. This makes it the 11th country to do so.

This marks an important milestone since if we add the remaining required countries--the United Kingdom and Germany--we reach 13 ratified countries which is sufficient to start the unitary patent system.

The Dutch government adds that:
Germany is likely to follow shortly. In addition, also approval by the United Kingdom is required. What the exact consequences of the announced 'Brexit' are for when the agreement enters into force, is still unclear.
The latter point is of course the problem. Only if the United Kingdom were to ratify can the agreement enter into force. They are legally fully allowed to do so, but personally I consider it unlikely that they at present will want to take this step.

In all other scenarios, the entry into force will be delayed. Even if the United Kingdom ratifies now, it is unclear what should happen if they leave the EU, but try to stay in the unified patent agreement.

Photo "Tullips in the rain" by Cicely Miller via Flickr under a CC-By 2.0 license (no changes made).

Thursday, 4 August 2016

UK Intellectual Property Office makes statement on UPC: no immediate changes

The intellectual property office of the UK has made a brief statement on the unitary patent after the Brexit. According to IPO:
The UK remains a Contracting Member State of the Unified Patent Court at present. We will continue to attend and participate in UPC meetings in that capacity. There will be no immediate changes.
This is the full statement regarding the unitary patent. I can imagine what those UPC meetings will be about, as the unitary patent's future is really murky right now. Different options are on the table, but all of them have downsides. Could the UK live with a UPC agreement that is full of references to EU law? Could the EU live with a UPC member that is not an EU member? There are many more questions than answers.

The statement also mentions other IE rights. If the IE right is not based on EU law, there is no problem (EPC, Madrid system), but what should happen to EU trademarks, and EU designs?

Photo by Couleur via Pixabay under a CC0 license (no changes made).

Monday, 18 July 2016

Battistelli considers unitary patent with UK a 'best case scenario'

Battistelli, the EPO President, discusses two possible scenario's for the future of the unitary patent after the UK voted to leave the EU in the Brexit referendum, in his Blog 'The future of the Unitary Patent package'.

According to Battistelli, "In the best case scenario, the UK could go ahead as soon as possible with the ratification of the UPC Agreement. This would allow the UK afterwards, in its EU exit negotiations, to obtain its continuous participation both in the Unified Patent Court and the Unitary Patent." This option follows the scenario proposed by Hoyng, that we discussed earlier on this Blog. Eplit, the European patent litigator association,  has sent a letter to  Lucy Neville-Rolfe, Minister for Intellectual Property, urging here to take this route and ratify the Agreement.

The advantages are clear, the unitary patent can go ahead as planned, and the UK buys time at least until their formal exit out of the EU on how to proceed. In the meantime a solution can be found that finds a place for the UK in the unitary patent. Either through a creative interpretation of the Agreement on a unified patent court (namely, you should be a EU member to become a participant not not to stay  participant) or in the form of an amendment or side-agreement. The latter options would have my preference, as they give more legal certainty.

In an article at Out-Law, Deborah Bould considers this approach unlikely. "It seems politically unrealistic to suggest that the UK ratifies the UPC Agreement now, to help get the unitary patent system off the ground, and then tries to negotiate to stay in as part of the UK’s exit terms," Bould said. At first glance, it does indeed seems illogical to ratify an agreement that further limits national sovereignty in favor of a pan-European court  just after a brexit vote. On the other hand, a UK in the unitary patent fits nicely in the 'soft brexit' model, in which a close relationship with the rest of the EU is maintained.
The alternative considered by Battistelli is to amend the Agreement and continue without the UK. This would give a unitary patent in which the UK is absent, but which still has countries like Germany, France, Italy and the Netherlands, that hopefully will make this 'unitary patent light' sufficiently attractive to be a viable option.

Bould offers yet a further alternative in which the Agreement on a unified patent court is renegotiated and opened up to all EPC member states who are not EU states. I presume Battisteli's option would be easier to obtain, but Bould's suggestion has the advantage that  states like Norway, Switzerland and Turkey could also join the unitary patent. I'm not sure though if it is necessary to codify access to the unitary patent to all EPO states. If the UK can be included in the unitary patent through a kind of extension agreement, then I do not see why a similar agreement can't be made with other EPO member states.
In any case, any tampering with the Agreement would take time, and delay the unitary patent, but that is a reality that seems inevitable in any scenario.

Photo by Clker-Free-Vector-Images via Pixabay under a CC0 license (no changes made).