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How to make the unitary patent and UPC succeed

James Nurton

Happy UPC day! It’s the day many predicted (and some hoped) would never arrive, as EU ministers sign the agreement that will – eventually – establish a single patent litigation system for Europe.

Michel Barnier
A happy man: Michel Barnier

Together with the regulations setting up a unitary patent and language regime, the UPC agreement will finally deliver a cheaper, simpler means of protecting and enforcing inventions in Europe. Or so the politicians claim.

Reality of course is more complex. Compromises over translation requirements and the role of the CJEU, as well as uncertainty about renewal fees, may mean that the new system when it comes into effect (2015, most likely) may not be cheaper overall for some applicants. And anyone who has read the UPC agreement and rules of procedure would be hard pressed to claim that the new court system is simple.

That’s why many European practitioners still have reservations about the plans, and a few people strongly oppose them. But in recent weeks I’ve detected a little more optimism and people do now seem to want it to succeed – bearing in mind success is not just about numbers; the system must also be predictable and trusted by patent owners and third parties. That means attention turns to three practical matters.

EU flagThe first is the rules of procedure, the latest version of which was released at the end of January. A great deal of thought has gone into drafting these (arguably more than went into the agreement itself). There is still an opportunity for people to comment, and I understand the drafters will welcome comments on matters of detail where there is a need for clarification. Clear, thorough, predictable rules, together with rules on court costs, will be essential for a strong system.

The second is the judges. Once it comes into force, they can make or break the UPC. We need experienced judges to take part, such as from the busy courts in Germany, the Netherlands and the UK, and it is slightly concerning to hear that some of them may not put themselves forward: Europe needs you! But the system also depends on judges from countries with less history of patent litigation – and that is surely right: the judiciary must be representative of all the member states participating if it is to have legitimacy. Those judges need training and the opportunity to gain experience before the court opens its doors.

Finally, the politicians need to recognise that their work does not finish with today’s signing. As Commissioner Michel Barnier said yesterday, the agreement must be ratified by each member state, which may be tricky in some cases. Patchwork ratification would increase complexity and reduce attractiveness. Longer term, political leaders may need to respond to problems and tweak the agreement (there is provision to do this, though it may not be easy).

Above all, participating member states need to agree on the fees (especially annuity fees), as this is the biggest source of uncertainty for patent owners. Multinational companies are already planning their budgets for 2014 and beyond, and cannot make strategic decisions about whether to consider unitary patents until we know what they cost. Talks about money are never easy, and as patent attorney Thorsten Bausch has argued there are particular difficulties with setting fees for this new right, but we need to see some figures soon.

Today is a landmark, and the part-realisation of a 40-year-old European dream. But there is still a lot of work to do to ensure that the unitary patent and UPC deliver on their promise to boost European innovation and industry.


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