Tuesday, 11 February 2014

After the Malta problem, will we get the Croatia condition?

As discussed yesterday, EP patent applications filed before March 1, 2007 may not be eligible for Unitary effect. Croatia is another state that may cause the same problem. Croatia joined the EPC on January 1, 2008. Because Croatia joined the EU last year (2013), they are not currently signatories to the UPC agreement.

Should they become member to the UPC agreement, Croatia may have the same blocking effect as Malta. This would mean that at some point EP applications filed 2008 are not eligible for unitary effect anymore.

One 'solution' that I have heard proposed is to keep Croatia out of the unitary patent. I don't think this would be a very good solution. It would mean that the unitary patent has closed the door to newcomers. 

I'm also not sure this solution would be possible, at least not without the cooperation of Croatia.

The unitary patent regulations are the result of so-called Enhanced cooperation within the EU. According to article 328 of the EU, "When enhanced cooperation is being established, it shall be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision."

I don't see any condition of participation that Croatia couldn't satisfy (2011/167/EU). So Croatia could join the enhanced cooperation and recognize unitary patents. Also the UPC Agreement seems to pose no barrier to signing. According to Article 84(4) of UPCA the agreement "shall be open to accession by any Member State."

As I currently understand it, Croatia can join the unitary patent system including the court at any time it wishes. I'm interested to hear, who could block Croatia form joining the UPC if it wanted to do so.

Interestingly, if Croatia joins the UPC after it has entered into force, there may be a window in which old EP applications (prior to 2008) can get unitary effect, which closes after Croatia ascends.

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