reported this morning, the Grand Panel of the Court
(pictured right) dismissed every aspect of Spain’s
dual challenge, the second time the country has queried the
Unitary Patent plan. That must remove any remaining
uncertainties over the legal basis of the EU scheme, even if it
doesn’t (yet) persuade the Spanish government to
The opponents of the proposed system, led by the Spanish
government, had some strong and sincerely held arguments
against it. The Court has firmly, clearly and finally rejected
these, as the Advocate General did last year.
No doubt some critics will remain unpersuaded by its
judgments, will continue to
criticise the proposed system and may even seek further
reviews at the European Court of Human Rights.
But surely now is the time for everyone to take a deep
breath and say: the CJEU has clearly spoken, much of the work
is underway and patent applicants (and third parties) need
certainty. Whatever your personal views about the merits of
what is proposed, it is time to put them aside and try to make
the system work in practice.
Above all that means: How much will it cost? When will it
come into effect? And should I use the system for some or all
of my patents?
We now need to see some
more activity from governments and the EPO to clarify renewal,
opt-out and court fees, the final rules of procedure and
judicial appointments. The recent
proposals on fees, while not as low as most users would
like, are at least a starting point, and we understand that
there may be further announcements on the other fees within the
I know from speaking to in-house counsel that news on costs
cannot come soon enough: many are already working on budgets
that could be affected by the Unitary Patent (for example, the
opt-out fees) and need to make spending decisions.
Patent practitioners in Europe also have a duty to their
clients, and to the public at large, to make the system work as
efficiently and fairly as possible. That includes building
expertise, engaging in consultations and promoting
We’ve had several years or debate about the
advantages and shortfalls of the Unitary Patent and UPC and
what is proposed certainly does not please everybody. But the
time for arguing is now over, and the time for planning how to
make it work in practice work must begin in earnest.