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EU Wide Patent Court Will Miss December Start Targets

The planned European Union-wide patent court and related patent right will not launch in December as planned.

The Unified Patent Court preparatory committee said June 7 that the delay was caused by several countries failing to agree to the protocol on UPC Provisional Application. The protocol allows parts of the UPC agreement, the controlling document for the court, to come into effect earlier.

The committee’s goal was to start the Provisional Application phase in May, to allow preparations for a December launch.

The planned patent court will have effect throughout most of the EU and will be accompanied by a single patent right that will also provide protection across multiple countries. Currently, patents and courts in the EU only cover individual countries. The new system would likely be attractive to large multinational companies, as it would make it easier and less costly to maintain patent protection throughout the EU.

UPC Preparatory Committee Head of Secretariat Eileen Tottle declined to comment, but said there would be another announcement at the end of June. The European Patent Office did not immediately respond to a request for comment.

A Lot to Do

Lawyers told Bloomberg BNA that the delay is not surprising, given the challenge of completing all the preparations on time.

‘‘I think the delay just reflects the practical realities’’ that the committee had too much to do, and there’s likely nothing suspicious about it, Edward Nodder, senior partner of patent litigation at Bristows LLP in London, told Bloomberg BNA. There was a growing sense that the necessary work would not be completed on time, he said.

The provisional protocol phase would come into effect after 13 countries have both agreed to the protocol and ratified, or declared they have parliamentary approval to ratify, the main UPC agreement. Only eight countries have so far met both requirements.

Without the provisional protocol in place, the court can’t do things like make official offers to hire judges, Nodder said.

Political Questions

Political uncertainties may also have played a role in the delay. The UPC agreement requires the U.K. to be one of the 13 ratifying countries. The UK has said it intends to go forward with ratification, but Parliament has not voted on it. The UK has agreed to the provisional application protocol.

The UPC missing the December launch is not a surprise after Prime Minister Theresa May in April called for a snap general election, Tom Carver, patent partner with JA Kemp in London, told Bloomberg BNA. With the election taking place June 8, Carver said he wouldn’t expect the U.K.’s ratification until September at the earliest.

Sally Shorthose, patent partner with Bird & Bird, also told Bloomberg BNA that the delay is not a surprise, adding that she has been advising clients that a launch in the first quarter of 2018 is more likely.

Ilya Kazi, patent partner with Mathys Squire LLP in London, told Bloomberg BNA that the ratifying legislation is likely ready to go and just needs to be passed by Parliament. If May’s Conservative Party stays in power, the government may submit the same instrument for passage, and the delay may be fairly short, he said.

Kazi added that the Labour Party has not made many, if any, substantive statements on the UPC, so it is unclear what would happen if it wins the election.

The UK’s announcement in November that it will ratify the treaty was seen as a positive development by UPC supporters, though there is debate about whether it can remain in the system once it finalizes its EU exit.

 

The article first appeared in Bloomberg Law, BNA's Patent, Trade Mark & Copyright Journal, Daily Edition, Volume 17, Number 109, 8 June 2017

01 July 2017

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