Brexit And The Future Of The Unitary Patent
June 20, 2016 (IP Flow) —Let’s suppose that you’ve come up with an invention and are wondering if you could obtain a patent for the invention across Europe. Now you have two options. First, you file separate patent applications at each country’s patent office. Then Examinations will be conducted independently in each country. Second, you file a patent application at European Patent Office (EPO) which can issue “a bundle of patents” after performing a single examination. Each individual patent making up the “bundle of patents” will not be valid in a country until it is translated into the country’s official language(s). More importantly, as patent rights exist in each country, litigation would need to be filed at each country.
In order to tackle the disadvantages of the current European patent system, the Member States of the European Union (EU) have, for several decades, been negotiating the creation of a European patent with unitary effect (“unitary patent”) and a “Unified European patent court”. The Regulations regarding the unitary patent (1257/2012 and 1260/2012) entered into force on 20 January 2013. However, they will only apply form the date of entry into force of the Agreement on a Unified Patent Court. In this regard, the Agreement on the Unified Patent Court was signed by 25 EU Member States on 19 February 2013. It will need to be ratified by at least 13 states, including France, Germany and the United Kingdom to enter into force, according to the Article 89 of the Agreement (Apparently, the United Kingdom is one of “the three Member States in which the highest number of European patents had effect in the year”.).
Entry into force
(1) This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including 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 or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement, whichever is the latest.
However, there is a dark shadow being cast on this new pan-European patent system. It is the “Brexit”. On June 23, 2016, the British public will vote in a referendum and decide whether Britain should remain in the European Union. If the referendum leads to a British exit from the EU, the Agreement will be at a standstill, unless the conditions for its entry into force are changed.
Theoretically, even if the referendum results in Brexit, the UK can sign the Agreement before it actually leaves the EU. However, given that the EU law prevails over the Agreement according to the Articles 20 and 24 of the Agreement, such a situation is just not realistic.
ARTICLE 20 Primacy of and respect for Union law
The Court shall apply Union law in its entirety and shall respect its primacy.
ARTICLE 24 Sources of law
(1) In full compliance with Article 20, when hearing a case brought before it under this Agreement, the Court shall base its decisions on:
(a) Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012;
Moreover, if a Brexit does indeed occur, the UK would have to forgo hosting a division of the court ruling on life sciences and pharmaceuticals disputes. In this context, Article 7 of the Agreement explains that the UK can play a crucial role in the new unified patent litigation system.
The Court of First Instance
(2) The central division shall have its seat in Paris, with sections in London and Munich. The cases before the central division shall be distributed in accordance with Annex II, which shall form an integral part of this Agreement.
Will the tremendous efforts to achieve the new European patent system pay dividends or straight down the drain? Its fate hinges on this week’s referendum.