The establishment of a unitary patent system in Europe was one of a package of measures agreed by the EU member states in 2011. The aim was to provide a patent proprietor with easier and cheaper access to patent protection and enforcement in Europe. The agreement was over 30 years in the making and paved the way for a Unified Patent Court in London, Paris and Munich.
Progress towards formal ratification by the EU member states has been slow but sufficient for the launch date to be within reach. That was until a complaint was filed at the German Constitutional Court in July 2017.
So where are we now?
Several interested parties are understood to be preparing an opinion to be filed at the German Constitutional Court by the end of December 2017. These opinions will be considered alongside the complaint filed in July 2017. All of this means that a quick ruling from the German Constitutional Court seems highly unlikely. The gloomiest predictions are that a ruling will not be made before 2020.
Where does this leave the unitary patent?
With the UK’s membership of the EU about to come to an end with Brexit, a failure to have the Unitary Patent up-and-running would make its fate very uncertain. As the wait for a ruling from the German Constitutional Court goes on in 2018, the potential timetable for launching the Unitary Patent becomes squeezed into a decreasing timeframe.
Of course, this uncertainty is made worse by the current political instability in the UK and Germany. Whether there is the political will to bring the system to life, even if the ruling arrives in time, is another question entirely.
At the beginning of 2017, the promise of a more effective patent regime in Europe was firmly within our grasp. For businesses who have been readying themselves for a welcome change, the legal and political position today makes that change seem as far away as it has ever been. As it enters the 45th year of its life, the current patent system in Europe may well be around for some time to come.