Tag: UPC Ratification

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Has Spain changed its mind about the Unitary patent package since its actions were dismissed by the CJEU?

Has Spain changed its mind about the Unitary patent package since its actions were dismissed by the CJEU? According to the Confederation of Employers and Industries of Spain, it has not and the Spanish industry is much better off outside the system…

A few weeks after Spain’s actions were dismissed by the ECJ, the Kluwer Patent Blog publishes an interview of the Confederation of Employers and Industries of Spain (CEOE), in which the Confederation explains why they strongly support Spain’s government’s opposition to the Unified Patent Court and the Unitary Patent and why they wish to remain out of the UPC Agreement.

It appears unambiguously that the CEOE believes that “the UPC Agreement will not be beneficial to most EU entreprises  and will be very detrimental to SMEs” justifying therefore CEOE’s strong opposition to the Unitary Patent package.

The CEOE’s main concern in that respect is the language regime adopted by the UPCA , namely the fact that the unitary patent will have to be filled in English, French or German. For the CEOE “this gives a competitive advantage to enterprises which use one of these languages, to the detriment of enterprises of other Member States.” An example for the CEOE of the unsuitability of the trilingual language regime is the EPO which it considers to be “inefficient and expensive“.

The CEOE further justifies Spain’s position towards the UPC Agreement by arguing that Spanish companies will be able to enjoy all the benefits of the UPCA without the inconvenient as they “will not be obliged to respect in Spain Unitary Patents which have been granted without a Spanish translation with legal effects. Nor will Spanish companies be exposed to lawsuits over products and activities developed in Spain, before a Unified Patent Court in a foreign country and in a foreign language.” The CEOE finally insists that the UPCA, and in particular the court fees, have not been designed with SMEs in mind. The CEOE argues notably that “only big companies will be able to litigate. If SMEs are sued for infringement, they will have to give up, even if the patent of the plaintiff is invalid“.

It appears therefore that there is still a very strong opposition to the Unitary Patent package in Spain and that as a consequence Spain will not in the near future be part of the UPC Agreement.

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What is the impact of the UK’s referendum on its EU membership on the UPCA?

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

WIPR published on its blog last week an update about the UK’s ratification of the UPCA, as it appears that it might only take place after the referendum on the country’s EU membership.

The European Union Referendum Bill was passed by the House of Commons on 9th June and if passed by the House of Lords, the referendum will be held before the end of 2017. The WIPR however notes that the UPCA ratification by the UK is unlikely to happen before the EU referendum, which means that the UK’s ratification might be postponed to the very end of 2017 or beginning of 2018. This late ratification will of course have a direct impact on the entry into force of the UPC as it requires the ratification of ten countries plus the ratification of France, Germany and the UK for the court to come into existence. The 2016 ambitious entry into force of the UPCA is thus very likely to be once again postponed.

If the UK were to leave the EU this would however not mean the end of the UPC. In fact, article 89 of the UPCA states that:

“This Agreement shall enter into force … on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place …”

A“Member State” is in turn defined in Article 2(b) as “a Member State of the European Union”. Therefore if the UK decides that it does not want to take part anymore in the European Union,  the Netherlands would become the third mandatory ratification country, as it is the country with the highest number of European patents after the UK.

If the end of the UK’s membership in the European Union does not mean the end of the Unified Patent Court Agreement, it would however have other practical consequences. In fact the UK is in in charge of various responsibilities within the UPC preparatory committee and notably the IT system. This major part of the UPC would thus need to be allocated to a country which has the capacity to put together an IT system within a short period of time. Another issue is the fact that one of the central division will be located in London. It would not make sense for the UK to host one entity of the central division if it does not ratify the UPCA and takes part in the Unified Patent Court. Article 7(2) of the UPCA however states that “The central division shall have its seat in Paris, with sections in London and Munich …” and Annex II to the Agreement specifies the functions of the London branch. An amendment of the UPCA would therefore be necessary in order to relocate the London central division. This amendment could of course be quite complicated to set up and might necessitate the countries who have already ratified the UPCA to ratify this amendment too.

Finally it must be noted that the most obvious consequence of the UK exiting the EU is the fact that the scope of protection offered by the unitary patent will not include the UK, and will therefore be narrower than it is now. The question is therefore whether this will make the unitary patent less attractive for patentees.

The issue of the UK’s referendum on its participation to the European Union will thus have direct consequences for the UPC, whether the UK stays within the EU or leaves the Union, and the UPC Blog by LAVOIX is keen to know what you think about this new development.

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ESOMA’s challenge of the UPCA before Belgium’s constitutional court dropped

We highlighted in May that the European Software Market Association was challenging the Unitary Patent before the Belgian Constitutional Court. ESOMA in fact believed that the Unitary Patent “violated the Belgian Constitution (by denying) Belgians equality before the law, (by discriminating) on basis of language, (by violating) the separation of powers, and (was) an illegal political maneuver by the European Patent Office”.

However the Court declared on 21 st May 2015 that ESOMA’s request was inadmissible, as it appeared that the claim was filed after the 60 day period within which the Consituational Court could address the constitutionality of Belgian laws. The law allowing the ratification of the UPCA was in fact published in the Moniteur Belge on 09th September 2014 while ESOMA’s request was only filed on 09th March 2015. The Constitutional Court therefore did not have a chance to look into details in ESOMA’s claims  and declined to consider the substantial issues allegedly at stake.

After the ECJ decision opposing Spain and the European Commission, this is thus the second decision in favour of the UPC, clearing the way for its planned entry into force in 2016.

 

The Belgian Constitutional Court decision can be found here.

 

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One more…Luxembourg has now ratified the UPC Agreement!

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

As confirmed by the Council of the European Union, Luxembourg deposited its instrument of ratification in Brussels on 22/05/15. It is thus official: Luxembourg has ratified the UPCA. Luxembourg is the first country to ratify the UPCA in 2015 and hopefully not the last!

In fact, seven out of twenty-one countries have now ratified the UPCA. However for the UPC Agreement to enter into force a total of thirteen countries is necessary, divided as follows: France, Germany, UK  + ten other countries. The Council of the European Commission counts at the moment: France + six other countries. Therefore for the UPC to stay on track and be effective by 2016 Germany, UK + four other countries need to ratify reasonably soon.

 

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A new challenge to the Unitary Patent Agreement before Belgium’s Constitutional Court

The IPCopy blog highlights a new challenge to the Unitary Patent Agreement brought by the European Software Market Association, a non-for-profit organisation which presents itself as “the voice of independent IT firms, professionals, and consumers”. The ESMA filed a suit before Belgium’s Constitutional Court at the beginning of April.

The ESMA argues that the Unitary Patent violates the Belgian Constitution by “deny(ing) Belgians equality before the law, discriminat(ing) on basis of language, violat(ing) the separation of powers, and (being) an illegal politician manoeuvre by the European Patent Office.”

As Belgium ratified the UPCA in June 2014, it is highly unlikely that this challenge will have any impact on the UPCA or its entry into force. However at a time where all governments should be considering a quick ratification, let’s hope that this does not incite new judicial challenges.

We would love to hear from our readers if they know any other organisation/individuals challenging the UPCA before the Courts.

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Last day for the UK IPO consultation on the UPC

Today is the last day of the consultation period -which closes at 11:45pm- launched by the UK Intellectual Property Office on “legislative changes to implement the UPC agreement and comply with the unitary patent Regulation”.

 

The UK Intellectual Property Office is “seeking views on the drafting, structure and effect of the draft legislation which will allow for the implementation of the Unified Patent Court Agreement and the associated EU Regulations which introduce the Unitary Patent.”

They are also asking for relevant evidence on the way that the proposals will work in practice in order to inform our assumptions about economic impacts, and to assist with decisions on the detail of proposed legislation.

The impact assessment of the UPC implementation infringement and implementation jurisdiction, and the statement of innovation can be found here.

 

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Denmark has ratified the UPCA

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

Following a referendum in May 2014 in favor of the UPC, Denmark has ratified the Unified Patent Court Agreement on 20 June 2014. Denmark will establish a local division of the UPC in Copenhagen with Danish and English as official languages.

You can find the ratification table here

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Sweden and Belgium have ratified the Unified Patent Court Agreement!

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

June has seen two new ratifications of the Unified Patent court Agreement by Sweden and Belgium, respectively on 05th and 06th June 2014.

Sweden had already announced earlier this year that it will form a regional division of the UPC together with Lithuania, Latvia and Estonia, which explains this quick ratification. The Nordic-Baltic court will operate in english only.

You can find a summary of the ratification progress here and on the site of the European Commission, as well as a map of the countries which have already ratified here.

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Unitary Patent ratification process maps

EU Map

 

Map indicating the countries which participated in the enhanced cooperation on the UPC:

Orange: Countries which participated in the enhanced cooperation on the unitary patent protection Yellow: Countries which did not participate in the enhanced cooperation on the unitary patent protection
Orange: Countries which participated in the enhanced cooperation on the unitary patent protection
Yellow: Countries which did not participate in the enhanced cooperation on the unitary patent protection

 

 

Map of the UPC Agreement Signatory States:

Pink: Countries which signed the Agreement on a Unified Patent Court on 19/02/2013 (except Bulgaria which signed on 05/03/2013) Yellow: Countries which did not sign the Agreement on a Unified Patent Court
Pink: Countries which signed the Agreement on a Unified Patent Court on 19/02/2013 (except Bulgaria which signed on 05/03/2013)
Yellow: Countries which did not sign the Agreement on a Unified Patent Court

 

 Map indicating the countries which have already ratified the UPC Agreement: 

 

Red Rectangles: Member States which have ratified the UPC Agreement Austria: 06/08/2013 France: 14/03/2014 Sweden: 05/06/2014 Belgium: 06/06/2014 Denmark: 20/06/2014 Malta: 09/12/2014 Luxemburg: 22/05/2015
Red Rectangles: Member States which have ratified the UPC Agreement
Austria: 06/08/2013
France: 14/03/2014
Sweden: 05/06/2014
Belgium: 06/06/2014
Denmark: 20/06/2014
Malta: 09/12/2014
Luxemburg: 22/05/2015

Source: Council of the European Union

 

 

 

 

 

 

 

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Unitary Patent ratification process table.

Unitary patent – ratification progress

Member State Participation in the enhanced cooperation on the unitary patent protection Signature of the Agreement on a Unified Patent Court Ratification of the Agreement on a Unified Patent Court
AT Austria  Yes 19.02.2013 
 06.08.2013
BE Belgium  Yes 19.02.2013 
 06.06.2014
BG Bulgaria  Yes 05.03.2013 
HR Croatia  No  No
CZ Czech Republic  Yes 19.02.2013 
CY Cyprus  Yes 19.02.2013 
DE Germany  Yes 19.02.2013 
DK Denmark  Yes 19.02.2013 
  20.06.2014
EE Estonia  Yes 19.02.2013 
GR Greece  Yes 19.02.2013 
FI Finland  Yes 19.02.2013 
  19.01.2016
FR France  Yes 19.02.2013 
  14.04.2014
HU Hungary  Yes 19.02.2013 
IE Ireland  Yes 19.02.2013 
IT Italy  Yes 19.02.2013 
LV Latvia  Yes 19.02.2013 
LT Lithuania  Yes 19.02.2013 
LU Luxembourg  Yes 19.02.2013 
  22.05.2015
MT Malta  Yes 19.02.2013 
  09.12.2014
NL The Netherlands  Yes 19.02.2013 
PL Poland  Yes  No
PT Portugal  Yes 19.02.2013 
  28.08.2015
RO Romania  Yes 19.02.2013 
SK Slovakia Yes 19.02.2013 
SI Slovenia  Yes 19.02.2013 
ES Spain  No  No
SE Sweden  Yes 19.02.2013 
  05.06.2014
UK United Kingdom  Yes 19.02.2013 

Source: Council of the European Union

Portugal: The Portugese Parliament passed on 10/04/2015 a passed a motion brought by the Council of Ministers to approve the Agreement on a Unified Patent Court. The ratification will however only be finalised after the presidential assent will be proclaimed by decree. Portugal will then need to deposit its instrument of ratification in Brussels for it to be effective. Moreover, according to Bristows UPC “the Commission for Foreign Affairs and Portuguese Communities, which studied the motion before it was voted by the full Assembly, highlighted the need for Portugal to establish a local division of the UPC, although the government has not yet formally expressed a view on the subject, and it was generally thought previously that Portugal would not set up a local division.“