Ullrich, Hanns, Select from Within the System: The European Patent with Unitary Effect (October 1, 2012). Geiger, Chr. ed., What Patent Law for Europe?, Paris (Litec), Forthcoming; Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 12-11. Available at SSRN: http://ssrn.com/abstract=2159672.

In this paper you can find the fragmented consequences for Member States which do not ratify UPC, which leaves them indeed with the classical EPO bundle of national patents, to be enforced before their national courts. See in particular footnote 84, p. 20.

Axel is right when saying this, but wrong when envisaging that “the entire system cannot start” before all participating Member States have ratified the agreement. This is because of new paragraph 2a of Art. 22 of the unitary patent regulation.

As a gift to these bloggers, last documents as of November 19, can be found on https://www.unitary-patent.eu/content/legislative-files.

Let me refer to Document 11328/11 dated June 23, 2011. This paper conveys the Draft Regulation implementing enhanced co-operation tn the area of unitary patent protection.

As already discussed earlier in this thread, Article 22 Para. 2 and 3 implement a blocking mechanism: Even if the regulation formally has entered into force on the thwentieth day following that of its publication in the OJ of the EU in accordance with Article 22 Para 1, nothing will happen immediately therefter in particular if the UPC is not operational. An effective start date of the system of the unitary patent system (after which the road block is deemed to be removed) is to be promulgated.

According to Article 22 Para. 3, the participating Member States have to make sure that from the promulgated effective start date of the unitary patent system onwards the unitary European patent is deemed *not* to have taken effect as a national patent.

Hence, in my view Denmark is inapt to become a “participating Member State” in the sense of Article 2 Lit. (a) before the date of ratification of the UPC Agreement. As long as Denmark merely belongs tto both of EU and EPC but has not ratified UPC Agreement, every European patent granted by EPO with effect for Denmark automatically can merely be conventional bundle patent. Or, the entire system cannot start until Denmark officially either has withdrawn as “participating Member State” or, alternatively, eventually has ratified the Agreement.

Only if Denmark has ratified the UPC Agreement, notification in accordance with Article 21 can be made; the flood gates get opened, and European Patents might be registered with unitary effect having this effect also with regard to the territory of Denmark.

Just my two cents; perhaps someone else has a different view. Would be interested to learn.

Apparently, I see nothing related to the UPC as suggest in Document 17407/11 (see new article 71a on annex). I’ve not studied the impact of this on UPC. Also I don’t know the state in Council about this regulation amending Brussels I.