The outcome of the British referendum, which confirms the wish of Great Britain to break away from the European Union, opens a new scenario as regards the date of entry into force of the Unitary Patent.

What will happen?

The European Patent with unitary effect, established in 2012 by two European Regulations (Reg. 1257 and Reg. 1260), is an additional protection tool that will stand alongside the by now “traditional” European Patent and, when fully implemented, it will enable an invention to be protected in a uniform manner across the whole territory of the European Union.

The European Patent with unitary effect will enter into force when the Agreement on the Unified Patent Court (Agreement 1635/2012) has been ratified by at least 13 EU Member States, including the three states in which the largest numbers of patents are filed. At present, these states are France, Germany and Britain.

Britain will actually leave the Union not earlier than two years’ time, so it is theoretically possible for the British Parliament to ratify the Agreement on the Unified Patent Court, thereby enabling the entry into force of UP and UPC in the second quarter of 2017. Possible, but how likely?

An alternative scenario is that Britain will decide not to ratify the Agreement within the next two years, which would cause the entry into force of UP and UPC to be deferred until its ratification by the third EU Member State designated on the basis of the largest number of European patent applications: Italy and the Netherlands currently vie for this position.

The next steps

From the time of ratification by the 13th Member State, the Unified Patent Court, which will have a number of seats located in various European cities, will have exclusive jurisdiction to rule on disputes concerning the validity and infringement of both the new European Patents with unitary effect and “classical” European Patents, whether granted after the ratification of the agreement or already granted at the time of its entry into force.

However, for a transitional period of several years, it will be possible to remove “classical” European Patents from the exclusive jurisdiction of the Unified Court by applying to “opt out” these patents. As a result, competence to rule on validity and infringement will remain with the national courts of the various countries, without any changes from the current situation.

To make it easier for holders of European Patents to exercise their opt-out right, there will be a 6-month “sunrise period” prior to the presumed date of entry into force of UP and UPC. During this period holders will be able to opt out their patent in advance; the opt-out will take effect as of the entry into force of the UP-UPC package.

As always, we will keep you abreast of any news and developments and, when the time comes, we will of course be ready to explore with you the new strategies to be adopted.