Category: Ratification & Brexit

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More ratification news: Lithuanian government introduces three bills to its parliament in view of the ratification of the UPCA

Protocol to the Agreement on a Unified Patent Court on provisional application

The Lithuanian government has introduced to its parliament the bills to ratify the UPC Agreement, and to create a regional division of the UPC with Sweden, Estonia and Latvia .

It also introduced a bill to amend its existing patent law, guaranteeing dual protection (or double patenting), the enforcement of the Unified Patent Court’s decisions, or the modalities of an action for violation of EU law .

Lithuania could thus become the 10th country to ratify the UPCA after Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal, Sweden.

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“Un passo più vicino”: The Italian government has approved the draft legislation for the ratification of the UPCA

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

The Italian Council of Ministers has published a press release announcing that it had approved the draft law on the ratification of the Unified Patent Court Agreement that will “lead to the completion of Italy’s participation in the enhanced cooperation in the Unitary Patent package”.

The government declared that “this new phase in the development of the internal market will enable innovating Italian operators to benefit from a patent valid in the whole of the European Union, guaranteed by a supranational and specialized jurisdiction.”

The press release also highlights the fact that Italy will host a local division of the UPC, which the government hopes will be a project “that presents a significant potential for the improvement of the Italian capacity”.

Finally, it is interesting to note that the Italian government refers to the Italian local division of the UPC as a “signal from the (Italian) government to continue to protect and promote the Italian language”, while the issue of the promotion of the Italian language was the very reason Italy initially stopped taking part in the UPC.

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Bulgaria will be 10th country to ratify the UPCA:

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

Bulgaria will be the next country to ratify the UPC Agreement according to the UPC Preparatory Committee which expects the ratification to happen by the end of April.

Bulgaria would then become the 10th country to ratify the UPCA ( Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal and Sweden have already ratified). To enter into force the UPCA must be signed by 13 countries including France, Germany and the UK.

See our ratification table here and all the news about ratification here.

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Will the UK ratify the UPCA before its referendum on the EU membership?

Brexit and the German constitutional challenge

In a statement sent to the magazine Managing IP the UK IPO declared that “the UK’s EU referendum will have no effect on UK ratification of the Unified Patent Court Agreement by the middle of 2016. This is in line with the timescale identified for the conclusion of the preparatory work necessary for the UPC to become operational.  Ratification will happen before the Court is expected to open, in early 2017.”

Similarly the UK’s Chartered  Institute of Patent Attorneys confirms that “the Government is proceeding on the basis that the UK will remain in the European Union. The UK Intellectual Property Office is working actively to establish the Unified Patent Court (UPC) and is preparing for ratification of the UPC Agreement.” It also published a table which highlights the major consequences on the intellectual property system the UK will face if choosing to leave the EU.

This issue was also raised in UK Parliament before the Fourth Delegated Legislation Committee on Monday 01/03/16 when Mr Edward Vaizey,  the UK Minister for Culture and the Digital Economy, introduced the Draft Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 to the committee, meeting which is reported  in the hansard published by Parliament.

Mr Vaizey therefore explains to the Committee that it would  be “clearly, were we to leave the European Union, we would no longer be members of the unified patent court. It would then be a matter for  ​the UK Government to ask the European Union whether we could be a member, if we thought that was a good thing. I suspect the European Union would have something to say about that. For people whose lives are dominated by thoughts of having a European patent, it would be a bad thing if we were not a member of the European Union. I hope that that is clear.” The Minister reminded the Committee at this occasion that the aim of the creation of the UPC and Unitary Patent was to “boost competitiveness and drive growth, and for a target to cut the burden on business.“

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One step closer to the German ratification – The German Federal Ministry of Justice reveals two draft bills:

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

The Kluwer Patent Blog publishes the first draft bill on the ratification of the Unified Patent Court and draft bill to implement the Unitary Patent at national level, both revealed by the German Federal Ministry of Justice.

A public consultation will take place before the final version is presented to the German Parliament, and should end before summer according to a spokesman for the German Ministry of Justice. The date of the ratification of the UPCA by Germany is on the other hand still unknown, and Germany’s delay in doing so is seen as a way to control the timing of the UPC’s entry into force.

The draft bills give indications as to the costs that Germany will bear for the Central Division in Munich, which should be around one million euros for its creation and 450.000 euros annually for its operation; and the states of Bavaria, Baden Württemberg, North Rhine-Westphalia and Hamburg for the four local divisions, estimated at two million euros altogether for their implementation and another 900.000 euros every year .

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Finland is the ninth country to ratify the UPCA:

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

Finland deposited its instrument of ratification of the UPC Agreement in Brussels with the General Secretariat of the Council of the European Union on 19th January.  Finland is the ninth member state to complete this step, the others being Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal and Sweden.  Two more countries must now ratify the UPCA, on top of the ratifications of Germany and the UK.

The UK has indicated that it would ratify the Agreement before its referendum on its EU membership, whose date has not been confirmed yet. On the other hand, it is expected that Germany will only ratify the UPCA in Septembre 2016. The entry into force of the UPC is planned for February 2017.

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Updates on the Protocol on Provisional Application of the Unified Patent Court Agreement:

protocol to the agreement on unified patent court on provisional application

The Protocol on Provisional Application of the Unified Patent Court signed on 01/10/15  has had a few updates since its our first post:

  • Hungary signed the Protocol on 07/10/15 after  its representative was prevented from signing the Protocol on 01/10/15, as the necessary Hungarian legal requirements had not been completed on time.
  • The Netherlands made a declaration stating that it will be bound by the provisional agreement from the day it will ratify the Unified Patent Court Agreement.
  • The United Kingdom made a reservation to the Unified Patent Court Agreement stating that it “shall not provisionally apply Article 4 of the Agreement on a Unified Patent Court”.

The Protocol will allow  “final decisions on the practical set up of the Court” to enter into application such as the “recruitment of judges and testing of IT systems“,  to permit a smoother set up of the court. The provisional application phase will also be used to allow for early registration of opt-out demands.

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Italy joins the Unitary Patent

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

We reported a few weeks ago that Italy had formally requested the European Commission to join the unitary patent. It appears from the European Commission website that Italy’s request was accepted and that it has now become the 26th member of the enhanced cooperation on unitary patent protection.

Italy was  initially opposed to the Council of Europe’s decision to allow the enhanced cooperation and challenged it, along Spain, before the Court of Justice of the European Union in May 2011. However after the CJEU rejected Italy and Spain’s actions in April 2013, Italy decided to sign the Unified Patent Court but abstained from participating in the enhanced cooperation.

Here our post on Italy and Spain’s challenges of the Unitary Patent from 2011 to its resolution in 2015.

Italy (but also Bulgaria, Cyprus, Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Romania, Slovakia, Slovenia, and the United Kingdom)  must now ratify the UPCA.

 

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More about ratification: What about Finland, Slovakia, or Germany?

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

Not long ago we posted about Italy’s change of direction in relation to the Unified Patent Court and the Unitary Patent, and its notification to the European Council of its intention to participate to the enhanced cooperation. It seems however that more happened this summer concerning the ratification of the UPC Agreement:

  •  Bristows reports that Finland is progressing towards a ratification by the end of 2015. The Finish Ministry of Employment and Economy in fact set up in February 2015 a working group to prepare the ratification of the UPCA. This working group published to this effect a draft for a Government Bill focusing on “how its provisions will be brought into force in the country and on how national legislation would be amended to align it with the provisions of the Agreement “, which should be considered this autumn. The UPCA would then become part of the national legislation thanks to a special piece of legislation and therefore entail for Finland an amendment of its Patent Code, Criminal Code, Code of Judicial Procedure and the Enforcement Code.
  • Bristows also notes that The Netherlands, Lithuania and Estonia are moving towards ratification in the coming months, while Germany’s ratification process is due to start in autumn 2015 and the UK’s ratification is scheduled for spring 2016.
  • The Kluwer Patent Blog published a post on Slovakia and the Czech Republic’s ratifications. It highlights the  problems that these countries might face with the Unitary Patent renewal fees and the Unified Patent Court fees.  Martin Husovec, a Slovak-born lawyer, academic and Doctoral Research Fellow at the Max Planck Institute in Munich interviewed by the Blog explains that both countries will in fact face “a sky-rocketing increase in the number of valid patents on their territory“, which means that “many activities that have been open to free competition will now need to be licensed and paid for“. The cost of doing business in these countries will therefore increase. Second, “it is likely that in the future UPC cases involving Czech or Slovak companies, they will most often be the defending party. For them, the proposed UPC fees, sometimes more than hundred times higher than currently at national courts, is not going to be good news.” Finally the Czech Confederation of Industry complains that “the consequence of the introduction of high fees will not be better accessibility of the protection of the rights of our inventors, but rather creation of an arena for the ‘activities’ of economically stronger multinational corporations.” The Czech Republic and Slovakia have therefore signaled that if their concerns are not addressed, they might considerably delay their ratification.

 

For regular updates on the UPC and the ratification process, follow us on Twitter @UPCBlogLAVOIX

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Italy one step closer to become a signatory to the UPC Agreement

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

While summer was in full swing, it seems that we missed an important piece of information about the UPC Agreement…

In fact, Italy notified the European Council on 07th July 2015 of “its intention to participate in the enhanced cooperation in the area of the creation of unitary patent protection and in the enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements“.

Italy, therefore, seems committed to become a signatory to the Unified Patent Court Agreement, and the 26th country to participate to the Unitary Patent.

Its letter to the General Secretariat of the Council can be found here.