European Council to discuss unitary patent system
The European Council will discuss the unitary patent system in a meeting tomorrow.
In the meeting, the council will “take note of a report on the progress made towards setting up the unitary patent system and the situation concerning ratification of the Unified Patent Court (UPC) agreement”.
Yesterday, September 27, the council published the background brief for the meeting of the competitiveness council within the main European Council.
The report being discussed is the fifth progress report by the chairs of the European Patent Office’s select committee and the UPC preparatory committee.
The preparatory committee published its last report in February this year, and has met on four other occasions since that time.
As the UPC is listed as “any other business” for this week’s meeting, there is not likely to be any substantive discussion, according to law firm Bristows.
The council’s next meeting is on November 28 to 29.
All the legal instruments required for the operation of the court have been agreed.
The fifth progress report stated that the preparatory committee is now in a position to conclude all the preparatory work for its final meeting in October.
According to the report, the UPC “could be operational in early 2017”, based on the assumption that the required ratifications are received by autumn this year.
“The outcome of the UK referendum has had consequences on the UK ratification process. The time-plan, therefore, may have to be revisited,” the report said.
It added: “It is highly desirable to keep any delay of the entry into force of the system to a minimum in order to provide the business community with the clarity and the swift entry into operation of the new patent system they require.”
The UK is one of three countries that must ratify the UPC in order for it to take effect, but following the Brexit vote this approval has been thrown into doubt. So far, 11 countries have ratified the UPC.
Alan Johnson, partner at Bristows, told WIPR: "Everyone has to accept that the result of the UK referendum will delay the commencement of the UPC—and not just by a few months. It is unrealistic politically to expect the UK to ratify as if the vote had never happened, but also without some real certainty that the UK can continue to participate post-Brexit.
"The main question for me is whether the other states involved will be patient and try to work with the UK to find a solution which would allow continued UK participation. It's not enough, no matter how well-meaning, just to offer words of reassurance that a solution will be worked out in the future if we sign up now."
He added: "It's better to get on immediately with the work required to put a modified system together. This is not starting again, but a question of working out a new legal arrangement which the Court of Justice of the European Union will find lawful. If the UK knows exactly what it needs to sign up to, and has the certainty that it will be lawful, it can then take a decision."
Johnson continued: "I really hope the other states will wait for the UK and work toward this, but if they won’t, that is their choice and there is probably not much the UK can do to stop them. And it should be remembered that if the other states do go down this route, they still have work to do to reach a replacement agreement excluding the UK, including resolving the political question of where the London branch of the central division should go.
"Plus they would have to go through a new round of ratifications, and I can’t see that being a particularly quick process either."
