What next for Europe’s unitary patent plans?

The UK has formally confirmed its exit from the UPC system, depositing a withdrawal notification on 20 July.

Many had thought that the combination of the UK’s withdrawal and the negative ruling of the German Constitutional Court in March had stopped this long-standing initiative in its tracks. Both the UK and Germany had central roles in the Unified Patent Court, and are essential to the ratification of the UPC Agreement.

The EU Commission, however, is pressing ahead. A Commission representative recently explained, in response to a European Parliament question, that Brexit should not prevent the project from going ahead. The Commission regards the system as open to EU member states only, meaning that the UK would have had to leave in any event.

The Commission is currently consulting on a new IP Roadmap, including plans to:

upgrade the system for IP protection, e.g. i) enable the Unitary Patent system to offer a “one-stop-shop” for patent protection and enforcement.

This leaves German ratification as an essential next step. The German Government is consulting on draft legislation to move forward with plans to ratify, involving transfer of London’s court functions to Paris, at least temporarily.

Meanwhile, opponents of the system seem to be gearing up for a new constitutional challenge based on issues quite separate from Brexit. These include issues like excessive litigation costs for SMEs. and insufficient oversight by the CJEU.

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