Today, getting patent protection in Europe involves filing a European application. Once this is granted, you can go on to validate your patent in certain other countries. The Unitary Patent, an attempt to simplify that process, is now on hold.
It was hoped that the Unitary Patent would cover 26 European Union members, remove the need for post-grant validation, and change patent filing strategies significantly.
Alongside the Unitary Patent there was also planned to be a Unified Patent Court (UPC) allowing rights-holders to take Europe Union-wide action via a single legal body.
The German Constitutional Court has ruled that the German Government followed an illegal parliamentary process in preparing the domestic legislation required for ratification of the UPC Agreement. This means that Germany is currently unable to ratify the agreement. As it currently stands the Agreement, and therefore the Unitary Patent and Unified Patent Court cannot enter into force.
At the moment the way forward is unclear. There appears to still be a general political will in Europe to simplify validation and litigation of Patents across Europe and it is possible that the German State will try again to ratify the UPC Agreement in its current form. It is also possible that there may be an attempt to push forward with cooperation on less constitutionally-controversial matters such as joint collection of renewal fee payments or phasing out of translation requirements as better machine translations become available. No change is expected in the immediate future and we will, of course, keep our clients informed as developments take place.
Contact Matthew Critten – or your usual Abel & Imray attorney – for more information.
If you are interested in the status of the unified patent court in relation to Brexit, follow our discussions on the impact of Brexit on intellectual property.