Brexit imperils unified European patent system
Britain’s referendum to leave the European Union last week has left the future of patent policy in the United Kingdom and the EU highly uncertain.
Specifically, the Brexit vote marks a major setback for the Unitary Patent (UP) and Unified Patent Court (UPC) system toward which the EU had been coalescing.
The need for a unified patent system
Currently, the European Patent Office (EPO) serves as the central clearinghouse for patent filings in the various countries in Europe. Applicants file patents with the EPO as a placeholder, then “validate” them nationally by filing separate applications in each EU member country. So if an inventor seeks patent protection in Italy, Germany, and the Netherlands, she will eventually have to file separate applications in each country, incurring filing and translation fees from each national patent office. Under the UP, however, the inventor would be able to file a single application that, if granted, would offer protection throughout the continent.
In addition, currently, patent disputes, too, are handled on a territorial basis. So if the inventor sues a company for infringing her patent in Italy, Germany, and the Netherlands, she must file separate suits in Italian, German, and Dutch courts to stop the infringement and recover damages. But under the UPC, the inventor could file a single infringement complaint in a single court that would afford her relief across all of Europe.
Both the UP and UPC had been marching along steadily, targeting spring 2017 as the start date for both projects. In 2013, 25 out of the then 27 EU member states had indicated their intention to participate, with only Italy and Spain demurring, and since that time both countries have moved closer to acceding to both regimes. As of January 2016, nine European states had formally ratified the proposal, and the nascent court even adopted final procedural rules the preceding October. More recently, in March of this year, the British Parliament passed implementing legislation while the government signed a lease for space for the UPC’s London division.
But now, in one fell swoop, the 52-48% “Leave” vote has cast all of this careful planning aside.
Can the unified patent system survive without the UK?
With Britain on its way out of the European Union, the country is unlikely to participate in either the Unitary Patent or the Unified Patent Court, especially since both regimes are intended for EU members. And with this key jurisdiction missing – the UK’s 80-million-people-strong market is highly attractive – the entire system may falter.
In fact, the current UPC legislation requires British ratification before it can come into effect. And while it’s conceivable that the other EU members could amend the legislation, or even that the UK could ratify the agreement before it departs the union, neither proposition is assured.
A post-EU Britain could also participate in these regimes even from outside of the union, although such an arrangement would prove highly complex and would invite other EU member-states to drop out of the UP and UPC and instead participate from the outside. Like tinkering with an Alexander Calder sculpture, removing any one piece of the European patent system risks toppling the entire edifice. Indeed, while colleagues at my law firm who have been following this issue carefully believe it is possible “that the UPC agreement might be amended to permit participation in that court by non-EU states if they agree that questions of EU [law] could be referred to the Court of Justice of the European Union,” they reckon that “any such change could take years.”
A glimmer of hope?
Not everyone has given up hope, though. The head of the European Patent Office, for one, remains optimistic, even after the Brexit vote. “Concerning the Unitary Patent and the Unified Patent Court,” EPO President Benoît Battistelli said, “the Office expects that the UK and the participating Member States will find a solution as soon as possible which will allow a full implementation of these so-long awaited achievements.”
But other practitioners are more skeptical. “It certainly leaves the project up in the air,” says John Conroy, my law partner at Fish & Richardson’s Munich office. Others believe a 2017 start date for the UP or UPC is “definitely not possible now.”
Participation in a Europe-wide patent regime likely wasn’t anywhere near the top of the list of concerns of British referendum voters. But the “Leave” vote will profoundly affect that regime anyway.
Πηγή: TechPolicyDaily-American Enterprise Institute
