Wednesday, 29 June 2016

Brexit? What brexit?

The UK should ratify the agreement on a unified patent court, get the unitary patent started and continue to be a member even after the Brexit is formalized.

This is the position taken by Willem Hoyng (member of the drafting committee of the UPC Rules of Proceedings and well known litigator) over at EPLAW.

This means the unitary patent system should soon come into effect as if no Brexit ever happened. London would keep its court, the EU would have its unitary patents, and everybody would be happy. Unitary patents would not necessarily be valid in the UK, but even this might be arranged with a separate international “Extension Agreement”.

According to Hoyng this is possible because the agreement on a unified patent court is an international treaty not an EU regulation, just like the  European Patent Convention. Although, the
agreement does not allow the participation of non-EU Member States, it is not required to leave the unified patent court should a country become a non-Member State.

Among the respondents at EPLAW is Leo Steenbeek (Principal IP Counsel of Philips), and he does not agree. Apart from the question whether it would make sense for country to engage in further international cooperation when it wishes to retreat from EU, there is also a question if the Court of Justice would allow this.

The position of the UK would be a bit like the one originally envisioned for Italy, part of the UPC but not (yet) of the unitary patent. If Hoyng says it's possible I'm willing to listen, but some confirmation on the legality of all this would be good. For example, an opinion of the Court of Justice on this would give the legal certainty needed for this venture. Moreover, whether there is the political will to make this happen? I'm not so sure. 

In any case, whether or not the UK can stay in after the Brexit, in any scenario it would be best if the UK would continue to ratify the agreement without delay. At least this would allow a unitary patent without the UK, and who knows, perhaps a bit more.

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

Friday, 24 June 2016

A new Unitary patent after UK leave-vote?

Yesterday the UK voted to leave the European Union. I find it really sad that they have decided that they're better off without us. Anyway, that is how it is.

So what will this mean for the unitary patent?

With the options that are currently on the table, either the UK ratifies as planned in which case there needs to be no delay at all, or the UK does not ratify. In the latter case, the unitary patent could still come into effect, but only after the UK formally ceases to be an EU member. This will take years.

Another option is that the unitary patent is abandoned in its present form, and renegotiated. Participating in the unitary patent is at present restricted to EU member states. A new unitary patent could be open to, say, EPO member states.

Interestingly, the Agreement on a unitary patent court is not an EU regulation but an international agreement. So the door is already cracked open for a broader membership. On the other hand, the Agreement in its present wording is explicitly restricted to EU members, and makes numerous references to union law. In fact, the primacy of European Union law is explicitly recognized in the Agreement. Although, a full renegotiation of the unitary patent is possible, this option would certainly take many years as well.

They only option I can see which does not significantly delay the unitary patent is that the UK ratify the agreement. Rationally a case can be made for ratifying even while leaving. It is in everyone's interest to get a cheaper and easier patent system, even if only on the mainland. However, I'm not sure how high on the political agenda this topic will remain in the UK, given the numerous other issues that need to be sorted out. Moreover, this option would transfer further sovereignty, even if only temporarily. We'll have to wait and see.

Photo "Storm Chasing May 2014" by Craig ONeal via Flickr under a CC-By 2.0 license (no changes made)

Monday, 20 June 2016

Brexit and unitary patent

“Should the United Kingdom remain a member of the European Union or leave the European Union?” that is the question facing the United Kingdom coming Thursday, June 23. As BenoĆ®t Battistelli said, “If the ‘out’ vote wins then we have a big question mark—nobody knows what will happen”. We can make a few speculations though on the consequences of a 'leave' vote for the unitary patent.

Can the unitary patent system still get started?

There are basically two scenarios in which the unitary patent system can still get started if the UK were to leave the EU.

The first possibility is that after a leave vote, the UK will remain a member of the EU for several years to come. During that time the UK could ratify the agreement on a unified patent court. If that happens, and the unified patent picks up two further ratifications (which seems likely), the unitary patent is on its way. After that the UK can leave the EU, but the unitary patent will continue. An upside for the UK is that it would get a more cost-efficient way to get patent protection on the continent. A downside, is that they would have to leave the agreement on a unified patent court, right after ratifying it.

In this way, the unitary patent system could theoretically come into force without delay. However, I can't imagine that unitary patents will be high on the political agenda in the turmoil following a leave-vote. So at least some delay may still happen.

The other possibility is that the UK will not ratify the agreement. After the UK has formally left the EU, the next largest patent country after Germany and France could ratify the agreement and make the agreement enter into force. The agreement does not explicitly refer to the UK when it discusses the requirements for entry into force. Article 89 (entry into force) refers to "the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place".  So if the UK leaves, some other country may take its place.

A problem with this scenario is that it can only take place if the UK has formally left the EU, which may take years. A significant delay will be the result. Probably, this will set back the unitary patent by years.

Interestingly, the required ratifications may happen before the UK leaves. This would mean that the unitary patent would come into force because the UK left the EU. This option could transpire, if three more counties beside the UK ratify.

If the unitary patent does enter into force, but the UK leaves, what would be different?
First of all, a unitary patent would not be valid in the UK. The unified patent court would not be competent in the UK.

It would still be possible to obtain patent protection in the UK. As the EPO is not an EU institute, a brexit would have no impact on EPO membership. Once a patent is granted at the EPO, the patent can be validated in the UK, just like in, say, Spain and Poland, while other countries may be covered by a unitary patent. National UK patents remain also a possibility.

Besides, the UK would lose its seat in the central division of the unified patent court. The UK had negotiated that part of the central court would go to London. If the UK is no longer an EU member, it cannot stay in the unitary patent either, and would have to give up this court. This also means that the agreement on a unified patent court probably needs amendment, as it refers explicitly to London. It is not known, if the London seat would go to another country, or if the central court be located in Paris and Munich only.

Photo "Bury St Edmunds 9th Annual Christmas Fayre 23-11-2012", by Karen Roe via Flickr under a CC-By license, no changes made.

Wednesday, 8 June 2016

EPO produces unitary effect simulation tool

The EPO has created a plug-in for their online  filing software that simulates the acts you would take to request unitary effect.
The procedure to get a unitary patent is almost the same as the current procedure to get a  'classical' European patent. Only after the decision to grant will the two procedures differ. Whereas a classical European patent needs validation in each country in which it is to remain valid, a unitary patent requires that the applicant request unitary effect with the EPO. 

 Requesting unitary effect will be possible using the online filing software that are currently used by most patent firms to interact with the EPO. As the time limit on requesting unitary effect is quite short, it is important that the requesting is easy to do and will not often go wrong. This should be possible as requesting unitary effect does not require a fee, and has few formalities.

Using the  demo software, a user can simulate the acts for requesting unitary effect. Of course any action in the demo software will have no legal effect. Only when the unitary effect has come into effect will the operational version of the software be made available.

The unitary patent demo software can be downloaded here.

Photo 'free wheelin' by Mark Ittleman via Flickr under a CC-By license; image was cropped and edited.