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Europe: Unitary Patent and UPC are approaching

Some events happened in the past months that furthered the developments in Europe to get the Unitary Patent and the Unified Patent Court (UPC) system started.

Already some months ago the Court of Justice of the EU dismissed the objections that were raised by Spain to the legality of the European regulation on the Unitary Patent and about the alignment of the UPC with the EU legal constitution. The effect of this decision was that further (legal) challenges to the establishment and existence of the Unitary Patent and UPC system are no longer possible.

Already anticipating this outcome, the Preparatory Committee formed by the participating countries, which is dealing with the implementation of the UPC, and the Select Committee have worked hard during the last few months. As part of the Administrative Council of the EPO, the Select Committee is dealing with the implementation of the Unitary Patent into the EPC. The Select Committee has come with a (final) proposal for the annuity fees of the Unitary Patent. This proposal seems to be acceptable to a majority, although there is still a lot of criticism on the size of these fees and on the fact that there will be no fee reductions for SMEs or for translation costs.

Also, there is a nearly finalized set of Rules that will be implemented into the EPC to take care of the formal and legal issues surrounding the request for unitary protection after grant of the European patent.

A further decisive factor is that on October 1 2015, Italy announced that it will take part in the Unitary Patent system, where it was first siding with Spain, which still continues to be excluded. Since also Poland has not complied with all requirements and since Croatia became a member state of the EU only after the Unitary Patent Regulations had been established, this means that 25 of the 28 states of the EU will take part (although most of these still need to ratify the UPC Agreement).

Regarding the UPC, the Preparatory Committee has already conducted major projects, such as the drafting of the Rules of Procedure of the Court (of which a final version is expected this month), the setting up of a digital case management system (now in the beta test phase), the development of a programme for training judges and a first proposal for the fee system for this new court.

The most recent development is a new Protocol to the UPC Agreement, which will allow actual hiring of personnel, including judges, and establishment of the opt-out register already before the entry into force of the UPC, thereby providing a sunrise period. Since the Preparatory Committee has announced that it will have finished its work in June 2016, it is expected that this sunrise period starts in June 2016 and that the UPC – and with that also the Unitary Patent – will become live in January 2017.

Bart van Wezenbeek

V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

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