Category : Unitary Patent

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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The Supplementary Protection Certificate and the Unitary Patent

Regulation 469/2009 (the “SPC Regulation”) lays down a system for the provision of Supplementary Protection Certificates (SPCs) in the EU.  SPCs were introduced to compensate for the loss of effective patent term caused by the delay in obtaining marketing authorisation for a pharmaceutical product, by extending the protection offered by the basic patent for a further period of up to five years.  During this period, where a product in the form referred to in the marketing authorisation is protected by the basic patent, the SPC protects the product, in the form referred to in the marketing authorisation, in any of the forms enjoying the protection of the basic patent (see C-392/97, Farmitalia). The system currently allows for the grant by national industrial patent offices of SPCs based on basic national patents and  European Patents designating that country. An SPC is valid from the  expiry of the basic patent, until 15 years after the grant of the first marketing authorisation in the EEA, with a maximum of five years (unless a paediatric extension is also granted). This means that if the first marketing authorisation is granted within five years of the application date of the basic patent, patent term extension may be obtained (although negative terms SPCs are possible, see C-125/10).. If the first marketing authorisation is granted between five and 10 years after the application date of the basic patent, the SPC will be valid from the expiry date of the basic patent until 15 years after the grant of the first marketing authorisation. If the first marketing authorisation is granted more than 10 years after the basic patent, the SPC will be valid for five years after the expiry of the basic patent.

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