And finally: the unitary patent is now ready to enter into operation

It’s official. The last legal hurdle ahead of the launch of the European Unitary Patent Court (UPC) in June has been moved out of the way, after Germany officially expressed its consent.

On Friday, the German government deposited its instrument of ratification of the Agreement on a Unified Patent Court at the Council of the EU. The step marks the end of ratification procedures needed, enabling the unitary patent package to become effective in the 17 participating member states.

The court will officially begin its work on 1 June and it will initially decide patent disputes for Germany, France, Belgium, Bulgaria, Denmark, Estonia, Finland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Portugal, Sweden, Slovenia.

Other EU member states will be able to join the unitary patent protection in the future.

António Campinos, president of the European Patent Office (EPO) said the German official consent “opens the door for a new era” of intellectual property protection in Europe.

As of June, European businesses will benefit from cheaper and more effective patent protection. “It will be a boon for the European economy as it establishes a uniform technology market facilitating transactions across a big economic region,” said Campinos.

The unitary patent has been slow to materialise, having first been proposed at the launch of the European Patent Convention in 1973. Inevitably, there were multiple compromises over the years taken to reach agreement, with two issues – the location of the Unitary Patent Court to deal with patent disputes, and the decision of Italy and Spain to opt out in protest at the designation of English, French and German as the sole patent languages, in particular holding back progress from 2010 onwards.

It also took time to decide where the Unitary Patent Court was to be located, with the eventual division of the spoils leading to a decentralised structure with a central division in Paris, a branch in London dealing with biotechnology and pharmaceutical patents, and a branch in Munich handling engineering patents.

When MEPs voted through the unitary patent in December 2012, the timetable was for it to open for business in in 2014. But, inevitably, the formal launch has been delayed by Brexit and also by two challenges in the German constitutional court. These challenges were dismissed in 2021 and the federal government ratified the agreement in September 2021.

A year ago, Austria ratified the provisional implementation of the Unitary Patent Court agreement, ending a decade-long deadlock.

While any appeals will be heard by the Court of Justice of the European Union, the single patent is not an EU system, since Spain and Italy declined to join following the terminal disagreement on the three language regime. Instead is set up under ‘Enhanced Cooperation’ a legislative pathway used when unanimity cannot be reached.

With all political hurdles out of the way, the patent court will become the main institution in the EU to safeguard and enforce patents in the EU, reducing the cost of protecting intellectual property rights. Patent applications are handled by EPO, which will also be in charge of operating the patent register, containing information on patent licenses and transfers.

On 1 January, EPO launched transitional measures to encourage an early uptake of the new system. Since then, the agency said it has already received at least 2,000 requests from European patent applicants.

According to EPO, the unitary patent marks the most important reform in the history of the European patent system, as it will provide increased legal certainty at the same time as reducing administrative burdens and cutting costs for applicants. EPO says the unitary patent will also boost technology transfer and investments in high tech industry.

Dave Croston, partner and patent attorney at European intellectual property firm, Withers & Rogers, said the unitary patent will enable innovators in small and medium enterprises to benefit from more cost-efficient patenting. Patent protection will apply in more European countries without the need to validate patents in each jurisdiction.

Also, the new system could position Europe as a preferred destination for companies to establish R&D centres. 

“In the past, companies investing large sums in innovation activities have been more likely to locate in places like the US and Japan, where single patent systems covering a large economic bloc already exist and enforcement rights favour the patentee,” said Croston. “The new regime will push Europe up the pecking order when it comes to choosing a place to innovate.”