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). 


  1. That Hoyng is in favour of a quick ratification is clear. He and his firm have put a lot in the UPC. The same applies for Hogan Lovell and Mr Tilmann. Just seeing those efforts, and the expected trade going with it disappearing, it is not a perspective easy to address. So why not come up with some wishful thoughts, especially for one’s purse?
    Whether this wishful thinking will become true is to be taken with more than a pinch of salt.

    Do all those wanting a quick ratification by the UK want to advise their clients to go along a path which one does not known where it will lead to at the end of the Brexit? What will eventually become with rights offered by a decision of the UPC taken with the help of British judges and which will have effect in other member states of the EU once UK has left? I would not bet a penny on this. Uncertainty is not something which investors like. But such a proposal brings in an uncertainty which it difficult to top.

    That UK lawyers and litigators see a vast amount of trade coming from over the Atlantic disappear because of the Brexit is certainly hard to swallow. All those future profits will go to other countries, and first to Germany.

    The Unitary patent is a patent open to EU member states and not to non-members. The logical conclusion of the Brexit is that UK will no longer be a member state.

    I would have thought that in view of the political sensitivity involved the President of the EPO would have been more careful, rather than push forward with such a proposal. Who’s benefit is he working for?

    What is proposed by some is nothing more than a revival of EPLA. I however would think EPLA is dead as dead can be, so why give false hope. Does all those hoping for a continued participation of UK would ever have envisaged the participation of Norway and Switzerland to the Unitary patent? Let’s be honest. No way.

    It would be much better to put everything back on the table, and now come up with an agreement in which all the compromises which have been entered are reviewed. The aim should be a Unitary patent which benefits first to European SME’s, and not to industry, wherever it might be located.

    It is somehow outrageous to claim that the Unitary patent has been set up for the benefit of SMEs and at the time think of a litigation insurance for the latter, as it clear that, if they are attacked or if they want to defend their IP, they do not have the deep pockets of industry. It is also time to stop this hypocrisy.

    Last but not least, when less than 50% of the applications at the EPO stem from Europe, what is the interest for Europe to give third states a good tool to attack Europe in one go?

    1. Thanks for your feedback. It is greatly appreciated.

      The big question for me as well is, what is the status of the unified patent court after the UK exits? Although the agreement might nowhere say explicitly that continued EU membership is required, it certainly seems to assume that this is the case.

      If I were to enforce a UPC decision, say a decision made by the London section, can an infringer get away by saying he doesn't recognize the authority of the UPC? Ultimately, this question would end up at the CJEU, and what they will say is anyone guess.

      This is not exactly a nice prospect for unitary patent holders. On the other hand, would the CJEU really invalidate thousands of unitary patents, just like that?