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February 2018 - UK in a position to ratify the UPC Agreement

With the passing by the Privy Council on 8 February 2018 of the Unified Patent Court (Privileges and Immunities) Order 2018 the UK has completed all of the necessary legislative steps to enable it to ratify the UPC Agreement.

On 8 February 2018 the Privy Council “made” the Unified Patent Court (Privileges and Immunities) Order 2018, thereby completing the final remaining pre-requisite to enable the UK government to ratify the UPC Agreement. This Order (the “Westminster SI”) lays the groundwork required for the UPC to operate in the UK, granting it legal capacities and immunities which are customarily accorded to similar bodies, such as inviolability of its records and premises and immunity of its officers and employees whilst in the conduct of their duty. This mirrors an equivalent Scottish statutory instrument, the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 (the "Scottish SI"), which was approved by Holyrood in October last year.

For full details, please click here

 

December 2017 - UK completes all legislative steps required to ratify the UPC Agreement

With the passing yesterday of the Unified Patents Court (Immunities and Privileges) Order 2017, the UK reached the end of the legislative process required to ready itself for ratifying the Unified Patent Court Agreement.

On Tuesday the House of Lords approved a Statutory Instrument, the Unified Patents Court (Immunities and Privileges) Order 2017, thereby overcoming the final hurdle required to “make” the order and allow it to pass into law. This Order (the “Westminster SI”) lays the groundwork required for the UPC to operate in the UK, granting it legal capacities and immunities which are customarily accorded to similar bodies, such as inviolability of its records and premises and immunity of its officers and employees whilst in the conduct of their duty. An equivalent statutory instrument, the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 (the "Scottish SI"), has already been approved by Hollyrood in October this year. All that now remains is for the Westminster SI formally to be “made” by the Privy Council, a mere formality in light of the parliamentary approval. The Scottish SI has already been “made” by the Privy Council, on 13 December 2017.

For full details, please click here.

November 2017 - IP Minister announces the UK’s continued commitment to the UPC, as statutory instrument passes final stage of debate in Westminster

Speaking in a Delegated Legislation Committee hearing, the proxy for debate in the House of Commons on the draft Unified Patents Court (Immunities and Privileges) Order 2017, the UK’s IP Minister yesterday expressed the government’s continued commitment to the UPC and its plans for the future. The instrument has now passed the committee stage, which marks the end of debate on the issue, and will require votes by both the House of Commons and the House of Lords before it can come into effect.

For full details please click here.

October 2017 - UK Takes One Step Closer Towards Ratification of the Unified Patents Court Agreement

Before the UK is able to ratify the Unified Patents Court Agreement, statutory instruments establishing the Unified Patents Court as a corporate entity in the UK and granting it certain privileges and immunities (such as inviolability of its records and premises) must be approved both by the Westminster and Scottish parliaments.

With the passing of the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 (the “Scottish SI”) by the Scottish Parliament yesterday, the UK has reached the first of these two key remaining milestones on the road towards ratification of the Unified Patents Court Agreement. For full details please click here

September 2017 - The UK’s Ratification of the UPC Agreement – Where are we now?

Before the UK is able to ratify the Unified Patents Court Agreement, statutory instruments establishing the Unified Patent Court as a corporate entity in the UK and granting it certain privileges and immunities (such as inviolability of its records and premises) must be approved both by the Westminster and Scottish parliaments. Now that the parliaments have returned from their respective summer recesses, we are able to provide updates on the progress of both.

For full details please click here

September 2017 - UPC ratification process in Germany put on hold following constitutional complaint

In March 2017, a constitutional complaint was filed against both the German bill for ratifying the UPC Agreement and the UPC Agreement itself with the German Federal Constitutional Court (“Bundesverfassungsgericht”) (see our article on the UPC ratification hold-up in Germany).

Many stakeholders have been speculating on the grounds for this constitutional complaint. Now, the German Federal Constitutional Court has disclosed the main line of argumentation of the complainant.

For full details please click here

June 2017 - UK ratification progress but UPC start delayed by German Federal Constitutional Court

Over the last months, the UPC project has been continuously subjected to a number of uncertainties. First and foremost there was the Brexit vote in the UK last year, followed by the General Election on 8 June 2017 (see our article on the impact of the UK General Election on the UPC). Now, Germany has unexpectedly added to these uncertainties; so far the UPC ratification pro-cess in the country had run very smoothly. Now the German President has put the process on hold, pending a constitutional complaint filed in March this year.

Germany, being the most important patent litigation venue in Europe, is one of three countries which mandatorily have to ratify the UPCA to bring the UPC to life. This article describes what is currently known about the background of the constitutional complaint. It also gives a basic understanding about the operation of the German Federal Constitutional Court where the complaint is pending. It furthermore considers the potential impact the stay in Germany may have on the overall UPC ratification schedule.

For full details please click here.

June 2017 - UPC implementation in the UK: considering the impact of the UK General Election

UK politics has, of late, been a source of significant discussion and debate across the world.  The Brexit vote, followed by the results of General Election on 8 June 2017, has caused a period of unprecedented uncertainty across the entire political spectrum in a country otherwise renowned for its political stability. 

From a patent lawyer’s perspective, the long-awaited commencement of the Unified Patent Court/Unitary Patent system has been at the forefront of that uncertainty.  This article considers the impact that the election results might have on the UPC/UP project moving forward.

This article is one of a series of specialist Allen & Overy papers on Brexit and the UPC. To read these papers as they become available, please visit: www.allenovery.com/brexit and www.allenovery.com/upc.

For full details please click here.

 

December 2016 - Impact on the long-awaited European
Unitary Patent project – an update

 

In February 2016, we published a paper discussing the potential impact of the United Kingdom leaving the European Union on the long-awaited Unitary Patent and Unified Patent Court (UPC) system.

On 23 June 2016, the UK electorate voted (by a margin of 51.9% to 48.1%) to leave the EU. The result of the referendum, and several other developments since, threw the future of the Unitary Patent project into serious doubt. To the surprise of many, however, on 28 November 2016 the UK Government indicated that it will proceed with ratification of the underlying UPC Agreement (UPCA). In this paper we summarise these developments and the likely ramifications. Notwithstanding the Government’s announcement, there remain several legal and political question marks regarding the UK’s ongoing involvement in the UPC system.
 
For further details please click here.
 
This article is one of a series of specialist Allen & Overy papers on Brexit and the UPC. To read these papers as they become available, please visit: www.allenovery.com/brexit and www.allenovery.com/upc.

June 2016 - Allen & Overy’s second UPC benchmarking study shows that patent heavy businesses buy into benefit, those with small portfolios less convinced as time runs out


 A year before the Unified Patent Court (UPC) is set to launch, considerably more patent heavy businesses believe the UPC will benefit their company (80%), compared to only 36% of those with small portfolios. This is according to a survey by Allen & Overy of 151 European senior executives with responsibility for their company’s patent portfolio.

Across all those surveyed, however, just over half (51%) of businesses say the UPC will benefit them, down from three quarters (74%) in 2014. Based on our work with clients on the UPC over the past two years, this general change in mood is not a reflection of a more negative opinion of the UPC but the result of businesses taking a more mature and nuanced approach to the system.

The findings highlight that businesses with significant IP exposure are better prepared, with senior management assessing the opportunities and risks the UPC presents and taking a more commercially pragmatic approach as the UPC becomes a reality. Those with small and medium sized portfolios, however, are still struggling to engage senior management and possibly lack the expertise to assess their exposure and the risks to their business.

There is an increasingly urgent need for the UPC to help educate businesses and SMEs in particular on how the new system will work. The number one challenge for businesses in preparing for the UPC remains getting clear answers to questions regarding how the system will work in practice and its various implications for their business, according to 68% of respondents. With better understanding may come better acceptance of the benefits of the UPC system.

For full details please click here or access the full report at www.allenovery.com/upcbenchmarkingstudy2016

June 2014 - Research reveals growing business support for UPC
Research published by Allen & Overy demonstrates surprising support for Europe’s hotly debated Unified Patent Court, with almost three-quarters (74%) of those responsible for overseeing preparations for the new system expecting it to be positive for their company – and only 15% expect it to have negative consequences for them.

Despite the faltering reception the new system has received from companies across the globe, its impact is likely to be significant.

The UPC will offer patentees the ability to obtain broader remedies than those currently on offer in the U.S., with a larger customer base impacted and injunctions that are easier, cheaper and quicker to obtain. Costs are estimated to be at least five times lower than in the U.S. These advantages alone mean there is likely to be a shift towards Europe’s UPC as a forum of choice to rival the U.S. for major patent disputes. This is further supported by the majority of respondents indicating they will file unitary patents, as opposed to classic European or national patents, under the new system.

Please click here to download a full copy of the report.

17 February 2016 - The long-awaited European Unitary Patent project is scheduled to go live in early 2017 - we assess the likely impact of a Brexit

 

This article is one of a series of specialist Allen & Overy papers on Brexit. In this article we discuss the possible impact of Brexit on the launch of the Unified Patents Court (UPC), scheduled to launch in 2017. We examine what the potential immediate fall out could be; whether the UK needs the UPC (and vice versa); the wider picture regarding the post Brexit IP world; and how the UK may need to interact with the UPC and other EU patent courts from 'outside'.

To see our other articles on Brexit, please go to
 
 
 

28 October 2015 - Preparatory Committee agrees the Rules of Procedure of the Unified Patent Court

The near-final form of the 18th Draft of the UPC Rules of Procedure has been formally adopted by the UPC Preparatory Committee at their most recent meeting on 19 October 2015. Although there will be further amendments to the 18th version in light of the ultimate rules on court fees and any additional technical amendments, the text published yesterday represents years of intensive work between the Preparatory Committee’s Legal working group, the Drafting Committee and stakeholders, including representatives from the Allen & Overy UPC team.

 
Read more here

5 May 2015 - CJEU gives green light to implementation of the Unified Patent Court

On May 5, 2015, the CJEU removed the final obstacle for the entry into force of Unitary Patent and Unified Patent Court (UPC).

With this decision, Spain lost the last of the two cases that it brought before the CJEU, challenging the legitimacy of the UPC system under EU law. In its decision, the CJEU has accepted that the UPC system can legitimately be built up, to a very large extent, outside the realm of European Union law, with the CJEU playing virtually no role in patent litigation. It is now up to the Member States to ratify this new system, expected to come into force by the end of 2016/early 2017.
 
 
 

18 November 2014 – Advocate General proposes that the CJEU should dismiss the Spanish challenge to the unitary patent regulations

The Unitary Patent System is one step closer to entering into force, as it now seems less likely that Spain will succeed in challenging the unitary patent package. In March 2013, the Kingdom of Spain asked the Court of Justice of the European Union (CJEU) to annul the regulation creating unitary patent protection (regulation (EU) 1257/2012) and the regulation on translational arrangements (regulation (EU) 1260/2012). At the oral hearing in July 2014, eight member states argued in favour of the new system. In today’s opinion, Advocate General (AG) Yves Bot agrees with the member states and proposes that the CJEU should dismiss Spain’s actions.

He stated that the unitary patent regulation does not affect the procedure to grant patent protection under the European Patent Convention but only gives European patents unitary effect in addition, which is beneficial for uniformity and integration. AG Bot disagrees with Spain’s claim that the Unified Patent Court Agreement (UPCA) affects the European Union’s powers as it confers powers on the European Patent Office (EPO). AG Bot points out that the CJEU does not have jurisdiction to review the content of the UPCA in this action for annulling the regulation. AG Bot also emphasises that making the application of the unitary patent regulation dependant on the entry into force of the UPCA ensures the proper functioning of the unitary patent, consistency of case-law and, hence, legal certainty. On the translational regulation, AG Bot takes the view that it is appropriate to limit the range of languages to English, French and German. If costs are to be kept down, European Union legislature has no choice but to restrict the number of translations needed, and practitioners are used to working in these three languages at the EPO.

In the majority of cases, the CJEU follows the opinion of the AG in its decisions. The judgment is expected in a few months' time.

For more information:
 

1 July 2014 - The Court of Justice of the European Union (CJEU) Hears the Spanish Challenge to the European Unitary Patent

Despite the progress that has been made towards launching the European unitary patent system and the Unified Patent Court, Spain continues to actively oppose the changes to the extent that today the CJEU heard the second legal action brought by Spain in relation to the system.

In this piece, as well as reporting on the salient points of Spain’s challenge and providing a summary of today’s hearing, we consider what the implications of this new challenge may be for the European unitary patent system, and how the CJEU could try to maintain the political consensus without betraying its own constitutional case law.
For further information on the Spanish challenge please click here.
 

19 March 2014 – Draft Rules of Procedure update

Recent events signal that the radical change to how patents are obtained and enforced in – and in particular involving Europe the new European Unified Patent Court (UPC) – is a fast-approaching reality and gaining momentum:

  • The pace of ratification has recently accelerated, with the French President having signed the bill of ratification on 24 February and the UK House of Commons having voted on the bill on 12 March 2014. The House of Lords is expected to follow suit on 30 July 2014. The Belgian Senate approved the UPC Agreement on 13 March 2014 and the Belgian House of Representatives is expected to follow this spring. These events indicate that the UPC will now almost certainly come into effect, probably by early 2016.
  • The Preparatory Committee of the UPC has just published a revised version of the draft Rules of Procedure for the UPC (the 16th version), which will form the basis of an audit later in 2014. Although the Expert’s Committee, mandated by the Preparatory Committee, has taken on board many comments received during the consultation period, the Rules of Procedure leave a lot of space for interpretation as a result of endeavouring to take a balanced compromise between the various jurisdictions and their judicial traditions in an attempt to develop a new uniform procedure for patent litigation. These uncertainties concern areas of significant importance to businesses.
Click here for details of the practical impact of the main changes to the Rules of Procedures and ratifications steps
 
 
 


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