On 13 September 2016, the European Patent Office’s President Benoît Battistelli, announced at the Intellectual Property Owners Association’s annual meeting in New York that he was keen for the UK to consent to an agreement to create a Unified Patent Court system for the European Union despite Brexit. Battistelli believes that the possibility of enforcing a patent across several jurisdictions is a cost effective measure for doing business and it is in the interest of the UK patent profession for the system to go ahead. He stated that the unitary patent system represents a “huge simplification of the process, a significant reduction of costs and an increase in legal certainty,” but without the U.K.’s ratification, “we will probably have to wait for years, and nobody knows how many years.” Battistelli plans to allow the Unified Patent Court to enter into force in 2017.
Battistelli was quick to point out that the Brexit turmoil “will have no impact on the European patent system or the membership of the UK in the European Patent Organisation. The EPO is not an EU agency, it’s an independent, international organization created by a treaty, to which the UK has adhered. The UK will continue to be a member of the EPO, European patents will continue to be valid in the UK, and UK patent attorneys will continue to work with us, provided they are also European patent attorneys. It is important to have this clearly in mind.”
The EPO President went on to explain, “the issue of the Unitary Patent is a little different, as it is a scheme that was created by 26 EU member states. It is a European patent valid for these EU states that will be granted by the EPO, as the EPO is tasked with acting as the “national” patent office of these 26 countries with the effect that, through one grant by the EPO, your patent will be valid automatically throughout those 26 countries. This is one of the great advantages of the unitary patent. For legal and political reasons the new patent is linked to the creation of a Unified Patent Court (UPC), created by a treaty, which must be ratified by the participating Member States.”
Battistelli stated “the main issue is that, because of the relevance of Germany, France, and the UK in terms of European patents validated, it was decided that these three countries must ratify the UPC treaty for it to enter into force. France has ratified, Germany is about to within the next few months, and so the question remains now about the UK. They had not ratified before the “Brexit” vote, so they have to decide now. If they decide not to ratify the treaty, we’ll have to wait until the UK formally leaves the EU in order to be able to launch the Unitary Patent. If they decide to ratify the UPC treaty, it will be possible to launch the Unitary Patent as projected by 2017. The EPO’s position is that we expect the UK will fulfil its commitment to ratify the treaty, since it is not an EU treaty, but an intergovernmental one.”