Category : Unitary Patent

Co-ownership/licensing agreements – Impact of UPCA

The Agreement on a Unified Patent Court (“UPCA”) will have a significant impact on agreements on Patents, especially on co-ownership and licensing agreements.

The Parties to a co-ownership or licensing agreement shall take into account the provisions applicable to European patents with unitary effect (namely Unitary Patents or “UP”) and those applicable to the Unified Patent Court (“UPC”).

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UPC launch in December 2017: dream or reality?

As we have seen, the UK Prime Minister has surprisingly called earlier last week for General Election to take place on 8 June 2017. Authorized by Parliament on 19 April 2017, this Election is likely to freeze the Parliamentary business very soon.

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Get prepared for a breathtaking fall sunrise

In practice, the UPC Agreement setting up the UPC is to enter into force the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession, including France, Germany and the UK.

As a further unforeseen development of the setting up of the UPC, the United Kingdom voted “Brexit”. This Brexit has become more tangible as the UK has notified withdrawal from the EU under article 50(2) of the Treaty on European Union on March 29, 2017.

Despite the great uncertainties created by Brexit, rumors say that the UK is willing to ratify the UPC Agreement in spring 2017. Besides, Germany is apparently prepared to do so in summer 2017. This would trigger start of the UPC at the end of year 2017 or the beginning of year 2018.

Before start of the UPC, these ratifications would trigger immediate entry into force of the Protocol to the UPC Agreement signed by the Contracting Member States on October 1st, 2015.

The UPC has to be fully operable at the date the UPC Agreement enters into force.

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UPC: Background & Overview

After two unsuccessful attempts to create a “Community Patent” in 1973 and 1989, the European Commission finally tabled the unitary patent proposal in 2011. (See European Parliament website for more information).

The system was supposed to be operational during the first semester of 2017, but due to the importance of the UK in the system, the “Brexit” referendum in June 2016 delayed its entry into force. Stakeholders now wish that it takes place before the end of 2017.  

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Can European Patent Attorneys represent parties before the UPC?

The role of representation of European patent attorneys before the UPC

According to article 48 of the Agreement on the Unified Patent Court (UPCA), there is an obligation for parties to be represented. Article 48(1) provides for the representation by a “lawyer” authorized to practice before a court of an EU Member State as a general principle, whereas under article 48(2), European patent attorneys authorized before the EPO under A.134 EPC may represent parties before the Unified Patent Court (UPC), provided “they have appropriate qualifications such as European patent litigation certificate”.

This language suggests that such Certificate is only one appropriate way among others to acquire the right of representation before the UPC for European patent attorneys.

The Administrative Committee issued Draft Rules (here) on the Certificate and other appropriate qualifications (hereafter the Draft) in March 2014, as well as a Memorandum on this Draft (here).

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