by Morag Peberdy and Christina Helden
When the legislative package the EU Unitary Patent was agreed last December, many speculated that the 1 January 2014 date for the implementation of the EU’s Unitary Patent was overly ambitious. The publication of the UK’s new Intellectual Property Bill (the “Bill”) on 10 May 2013 now gives real substance to this viewpoint. The provisions of the Bill indicate that the UK will not ratify the Agreement on a Unified Patent Court (the “Agreement”), one of the key legislative instruments required for the Unitary Patent’s implementation, until April or May 2015. Since the UK must ratify the Agreement before it can be implemented anywhere in Europe, it appears that the timetable has been derailed. Given that a number of tech companies, including Nokia and BAE Systems, advocated vocally against the Unitary Patent in its current form, this may be welcome news to some.
The Unitary Patent will create a single patent with unitary effect, litigated in a Unified European Patent Court. Regulation (EU) No 1257/2012 and Council regulation (EU) No 1260/2012 provide for the single patent with unitary effect. The former also establishes the 1 January timeline for its implementation. The Agreement creates the court system which will govern the new system. However, the Unitary Patent cannot come into effect until 4 months after 13 EU member states have ratified the Agreement, which must include the UK, France and Germany. Importantly, the ratification process is dependent on national laws and timelines.
The recent publication of the UK’s Bill confirms that the UK’s timetable for ratifying the Agreement will delay the Unitary Patent’s implementation. Clause 16 of the Bill gives the Secretary of State the power to create a Statutory Instrument (the “SI”) to amend the UK Patents Act to provide for the Unitary Patent. Only after the Bill has become law, will the SI be approved by Parliament. Following approval of the Bill and subsequently the SI, the Foreign Office must present a command paper to Parliament requesting approval of the Agreement, completing the UK’s ratification process, probably in the Spring of 2015.
The UK may not be the slowest member state to ratify the Agreement. It still remains to be seen if Germany, France and at least 10 other EU member states can ratify the Agreement within this extended time period of ~April/May 2015. It is possible that Ireland and Denmark will be required by their national laws to hold a referendum on the Unitary Patent. Even if sufficient countries have ratified the Agreement before the UK, the Unitary Patent will not be implemented for a further four months. Furthermore, there are several other issues that could even delay the process, including a second Spanish legal challenge to the Unitary Patent presently in the CJEU. Also, there are various procedural matters such as training judges and hiring the personnel to staff the courts to contend with. Consequently, it does not appear that the new Unitary Patent system will be a reality until at least the second half of 2015.