5th conference on the Unitary Patent and the Unified Patent Court

The 5th conference on the Unitary Patent and the Unified Patent Court, organized annually by Premier Cercle in association with the EPO, was held in Munich on July 5, 2017.

First, an overview over the state of advancement of the implementation of the Unitary Patent and the UPC from a technical, legal and financial point of view was given by a member of the Committee in charge of the Implementation of the Unitary Patent Protection. It appears that the implementation is completed at all levels, and that the system is ready to launch as soon as the ratification process has been completed.

This overview was followed by a discussion on the selection of the judges for the UPC. The first round of selection is now completed and 236 candidates were selected among initially 841. These candidates will now be interviewed individually to select a total of 100 judges, among which 50 technically qualified judges and 50 legally qualified judges. The overall impression conveyed by the Chairman of the Advisory Panel on the Selection and Training of Judges for the Unified Patent Court, Sir Robin Jacob, was that the quality of the candidates was very promising.

A panel of judges from different member states then discussed whether national particularities might result in a different approach to the UPC Agreement in the different local and regional divisions of the UPC, thus encouraging forum shopping. The consensus was that, although the judges might be influenced by their origins and associated legal cultures, potential differences should be mitigated by the presence of a foreign judge in each panel. Moreover, over time, differences should be levelled out through the judgments of the Court of Appeal in the second instance, resulting in a harmonized practice.

The impact of the Unitary Patent System on patent portfolios was broached by the members of an industry panel. The panel members had generally positive attitude towards the Unitary Patent and Unitary Patent Court. They all expressed their intent of becoming active users of the system with, however, varying strategies as regards the proportion of opt-ins in a mix of opt-in, opt-out and parallel national filings, at least initially.

Finally, a new section of the EPO online Patent Register relating to Unitary Patent aspects was presented. For each European Patent, information relating to the Unitary Patent, such as the dates of registration and of legal effect of the Unitary Patent, will be available in an additional section of the register. Moreover, a new kind code, C0, has been created for identifying unitary patents in order to facilitate the search of unitary patents.

Questions still requiring further consideration are, in particular:

– the provision of a safety net system should the unitary effect be refused after the expiry of the normal time limit for national validations;

the treatment of national prior rights. For the time being, a top-up search carried out by the EPO just prior to grant is planned in order to reduce the risk of discovery of national prior rights affecting the validity of the unitary patent as a whole after the date of legal effect of the Unitary Patent;

– the languages allowed at the local and regional divisions of the UPC; and

– the implementation of supplementary protection certificates.

Of course, the actual launch of the Unitary Patent System will depend on the decision on the constitutional complaint filed in Germany in June, as well as on the timetable of the ratification process by the UK.

A link to the program of the conference can be found under the following URL: http://www.unitarypatentsystem.eu/agenda/

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