Posts Tagged: "Unified Patent Court"

The European Union Unified Patent Court (UPC) announced this week that the court’s Sunrise Period will be delayed by two months. The Sunrise Period has a new planned opening date of March 1, 2023, with the entry into force of the UPC Agreement (UPCA) pushed to June 1, 2023. In an official announcement, Klaus Grabinski, President of the UPC Court of Appeal, and Johannes Karcher, Acting Chairman of the Administrative Committee, said, “the additional time is intended to allow future users to prepare themselves for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents.”

The Unified Patent Court (UPC) plans to open for business on April 1, 2023. Its likely place among the world’s preeminent patent courts can be inferred, at least in part, from the territorial and subject matter jurisdiction of this novel court. In Europe, several courts enjoy established reputations for patent litigation, notably in France, Germany, the United Kingdom, Holland and Italy. These courts, as well as the European Patent Office (EPO), which also enjoys a strong reputation for its case law, are the preferred venues of plaintiffs for enforcing or seeking to invalidate European patents. Due to the size and economic weight of the region, the importance of European patents, and the bench of experienced patent judges and practitioners, Europe will without doubt continue to attract a substantial share of patent litigation worldwide.

The long-awaited EU Unitary Patent and Unified Patent Court (UPC) looks likely to be launched in 2022, after Germany’s top court rejected two challenges to ratification on Friday, July 9. In its decision, the Federal Constitutional Court rejected both the applications for preliminary injunction directed against the Act of Approval to ratify the Agreement of February 19, 2013 on a Unified Patent Court (UPCA). (BVerfG, Beschluss des Zweiten Senats vom 23. Juni 2021- 2 BvR 2216/20 -, Rn. 1-81.)

It’s the time of year to reflect upon the cases and trends that have shaped IP over the past 12 months. Here are our picks for the top five in patents from Europe. First, it’s been a year of ups and downs for the EU’s attempt to create a Unitary Project and Unified Patent Court. (UPC) In March, Germany’s Federal Constitutional Court said that the Act of Approval of the UPC Agreement in the country was void as not enough members were present at the vote. Following the UK government’s decision that it would withdraw from the project, the Court’s decision was seen as potentially a terminal blow.

n Friday, March 20, the German Constitutional Court (“Bundesverfassungsgericht”, “BverfG”) declared Germany’s approval legislation of the Agreement on a Unified Patent Court (UPC) unconstitutional. Those who have gone into full mourning over this decision, calling it the death knell of the UPC, may find the coffin to be far from shut. Instead, the UPC may have been given a second lease on life, and those with substantive concerns about the UPC may end up wearing the black ribbon in the long run.

Judges in Germany have dealt what may be a fatal blow to the project to create a Unified Patent Court (UPC) in Europe. In a decision published today, the German Federal Constitutional Court said the Act of the Approval of the UPC Agreement was void. (BVerfG, Beschluss des Zweiten Senats vom 13. February 2020 – 2 BvR 739/17 -, Rn. (1-21).) The Act of Approval was passed unanimously by the Second Chamber of the Bundestag but only about 35 members were present. The Court said that a two-thirds majority of the Bundestag was required.

The UK Government has confirmed that the country will not be part of the planned Unified Patent Court (UPC). The decision was revealed in a statement sent by a government spokesperson to IAM Magazine on February 27, after it had been hinted at in an electronic mailing distributed by a trade association and shared on social media. This represents a reversal of policy, since the UK ratified the UPC Agreement in April 2018. Ironically, the minister who signed the ratification was the then Foreign Secretary, Boris Johnson. He is now the Prime Minister. However, the change was expected after the government published its approach to negotiations on the future relationship with the EU earlier on February 27. This document explicitly ruled out “any jurisdiction” for the Court of Justice of the EU (CJEU) in the UK.

With a “no-deal” Brexit set to take place this Friday and the Unitary Patent system set to take effect sometime this year, EU patent applicants who want protection in the UK should be aware of the many moving parts to consider. Patent applicants who wish to file for a European patent and receive patent protection in the United Kingdom (UK) should consider whether they want the European patent to have “unitary” effect and be mindful of the UK’s participation in the Unitary Patent system. The UK European Union membership referendum, known commonly as “Brexit,” took place on June 23, 2016. The referendum resulted in a majority of votes in favor of leaving the European Union (EU). A “no-deal” Brexit is set to occur on April 12, 2019 absent of a “new deal” between the UK and EU leaders or an extension.

Brexit has been postponed and will not now happen at midnight on March 29, 2019.The UK’s House of Commons has twice voted against the Withdrawal Agreement and Political Declaration, which were agreed between the UK Government and the European Union in November 2018. It is not clear at this stage whether Members of Parliament (MPs) will support the Agreement if and when it is put before them again. The UK Government updated its guidance on IP and Brexit on March 22 2019.The most important point for IP rights holders is that on Brexit day, whenever that is, unitary EU rights (notably EU trademarks and registered Community designs) will cease to cover the UK, unless there is an agreement to the contrary.

This decision will continue to have a significant effect on the IP/IT market which has been governed by so many EU Regulations and Directives in the past (albeit not exclusively) that intricately bound the UK to the EU. The UK will in due course enter a negotiation period during which laws will be amended and enacted and international agreements will be negotiated. Due to the required notice period, the actual exit date will not be before 2018. The exact fate of the UK is also still up for debate with many options including retaining membership of the EEA only, or joining EFTA, or having a customs-only arrangement with the EU. The implications of this Brexit are currently very uncertain and will, to a large extent, be determined by the model that would be adopted and the terms of any international agreements negotiated.

On 23 June 2016, the British citizens will hold their referendum on the country’s membership in the European Union. Should they vote for the UK to leave the EU (the so-called ‘Brexit’), the new European unitary patent system is likely to collapse before it started… If the UK was to refuse to ratify the European Patent Court Treaty after the exit vote on June 23 2016, the Treaty would also need to be renegotiated so that UK ratification is no longer required for the Treaty’s entry into force. Without such renegotiation, this requirement would only cease to apply when the UK has in fact left the EU.

It is quite surprising to see that with all of the work being done to strengthen the patent systems across Europe with the creation of the Unified Patent Court, we see The Economist recently publishing a number of authorless articles calling for dramatic curtail of patent rights – on the edge of abolishment… We are currently witnessing some patent owners enforcing their patent rights exclusively using the European courts, some of these are companies based in the United States. Now with the Unified Patent Court on the horizon, it is expected that we will see more enforcement actions in London, and Europe more broadly. This again is a clear sign that Europe sees value in a strong patent system and recognizes the importance of a patent owners ability to enforce those rights.