Monday, 23 February 2015

Is the Italian government reconsidering its position on the unitary patent?

At present the Italy has a unique position with respect to the unitary patent: participating in the unified patent court but not in the unitary patent.


Italy is one of the countries that are excepted from the EU unitary patent regulation. This means that a unitary patent will not be valid in Italy. Also Spain negotiated a special position for the unitary patent. Unitary patent won't be valid in Spain either.

Unlike Spain however, Italy did sign the Agreement on a unified patent court. Italy has not ratified this document yet, but as far as I know Italy does intent to sign this Agreement eventually [ at present only six countries have ]. 

Assuming Italy would ratify the Agreement, we would have the interesting situation that a unitary patent would not be valid in Italy, but a local division of the unified patent court could nevertheless revoke a unitary patent for the rest of Europe. Fortunately, this scenario would be under the control of the patent proprietor. Since a unitary patent cannot be infringed in Italy, a local division of the unified patent court could still be competent if the alleged infringer defending the suit has its residence in Italy (Article 33(1)(b) of the agreement).

Apparently the Italian government is considering how to move forward in this curious situation. According to Gualtiero Dragotti the Italian Ministry of Economic Development submitted a formal call for comments about the following options:



Option 1: Italy to join the Enhanced cooperation and to ratify the UPC Treaty;

Option 2: Italy remaining adverse to the Unitary Patent but to ratify the UPC Treaty; or

Option 3: Italy against both the Unitary Patent and  the UPC Treaty.


The first option would move Italy away from Spain.  In a sense this is already the case. During the first legal challenges against the unitary patent system, Italy and Spain both complained at the Court of Justice. However, in the current legal challenge only Spain is a party.


The second option would continue the current situation. It seems that this option is a loss for everybody. The unitary patent loses an important economy, but on the other hand Italy will have to bear the costs for a unified patent court.

With the third option, Italy would move closer back to Spain which did not sign the Agreement, and thus will also not ratify it, at least not in the foreseeable future.

Being an important economy (fourth in GDP according to Wikipedia) and the fact that they are not active anymore in challenging the unitary patent, it is my expectation that the Italy will take the first option and join the unitary patent. The first option would bring Italy back into the unitary patent fold and join Austria, Belgium, Denmark, France, Malta and Sweden as the fully ratified countries.

The request for comments only gave 4 days to respond (the request was issued on 16 February, while last Friday was the deadline for comments). What is the reason for this urgency?

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