Jack Ellis

The majority of European Union member states today signed an agreement to establish the Unified Patent Court (UPC), which will hold jurisdiction over the planned EU-wide patent right. However, the agreement still requires ratification by at least 13 countries before it is implemented – and domestic political concerns could yet derail the scheme.

Twenty-four member states signed the agreement, including Italy – which had originally opted out of the proposed unitary patent, along with Spain – though it will reportedly remain outside of the wider unitary patent system. Bulgaria has refrained from signing until certain domestic administrative matters are resolved.

Poland also decided not to sign the agreement because of concerns over the potential negative impact of the unitary patent to its economy – though it has not ruled out joining up in the future. Alan Johnson, a partner at Bristows who sits on the UK Intellectual Property Office’s European Patent Reform Consultation Group, thinks that there is a distinct possibility that other member states could get cold feet too. “In December 2012, Poland apparently decided it would not sign the agreement because of the potential cost,” he says. “Will others do likewise? More likely, will other countries simply not ratify, risking a patchwork system?”

Ratification by the national governments of member states is vital to the progression of the unitary patent project because the other two legislative cornerstones that will establish the EU-wide system – those regarding the creation of the community patent right itself and the translation of EU patents into different languages – cannot become effective until the UPC agreement is in force. The European Commission has suggested that this could happen by 1st January 2014, with the first EU patents granted shortly thereafter. However, this  target date could be difficult to meet because the agreement will require ratification by at least 13 signatory states including Britain, France and Germany before it comes into force.

Nonetheless, Johnson advises businesses to act now in order to avoid problems farther down the line. “If we are to believe the European Commission's timeline, the system could be up and running by this time next year,” he says. “Even though that's unlikely due to the need to ratify the treaty in multiple jurisdictions it is still urgent to devise a strategy and understand what can be done.”

Alan Johnson and Bristows senior partner Philip Westmacott discuss the rollout of the unitary patent system in the latest issue of IAM. You can read their article here.