the EU patent package initially was aimed at establishing a unitary patent that is valid across the European Union. As Spain and Italy resisted to adopt the rules because unitary patents will be only translated into few languages, reducing overall cost, the initial plan failed. Furthermore, the unitary patent and the UPC may make European companies more vulnerable due to the fact that a single proceeding in one country can annul their patent claims in all EU countries. © Audiovisual library of the EC.

Implementation of EU Unitary Patent Court delaying

In mid-June, the German Federal Constitutional Court asked the German President not to sign legislation designed to implement the EU Unified Patent Court (UPC, EU Agreement 16351/12) and Unitary Patent (EU Regulation 1257/12). Now, there are hints for a further delay. The constitutional complaint behind the delay, rumoured to be brought up by a German life sciences IP expert, has led to a stop of hiring German judges for the UPC.

Sources told European Biotechnology Magazine that Germany has stopped hiring of German judges for the court, a clear signal that Germany is going to halt the ratification process of the UPC agreement for a longer period of time than previously expected. Without the UK, Germany and France ratifying legislation for the UPC, the unitary patent cannot become reality. To date, only five EU member states (Austria, Belgium, Denmark, Malta, and Sweden) have ratified the agreement.

On the other hand, it is still matter of the Brexit negotiations – and thus open – what role the UK will take in the future unitary patent world. So far, the rules for non-EU member states of the EPO were clear: countries such as Norway, Switzerland and Turkey were not allowed to participate in the unitary patent and the Unitary Patent Court because the unitary patent right was created under EU regulation, only for EU states.

Following Germany’s new move, experts in the field expect now a delay of at least two years in the implementation of the harmonised EU patent, until the role of the UK in the procedure has been clarified. Before, the delay was expected to be at least 6 months, until the German Federal Constitutional Court had issues an order concerning the constitutional complaint. The new move is expected to delay ratification at least until 2020.

Further delays can be expected as in June, the EPO officially confirmed that it is seeking a successor for its current president Benoît Battistelli whose contract will end in 2018. As Battistelli’s leadership style has been criticised as autocratic and led to several strikes of the EPO staff, it is no easy task for Christoph Ernst (63), Head of the Administrative Council of the EPO, who is also responsible at Germany’s Ministry of Justice for the UPC, to find a suitable successor for the high ranking position. The European Union regulation No. 1257/12 will permit the EPO to issue a single Unitary Patent for 13 or more participating EU states, which must include France, Germany and the UK. Furthermore, under the Unitary Patent regulation participating member states will entrust several tasks to be carried out by the EPO.

Thomas Gabrielczyk

25 August 2017