Campaign poster in Dublin during the Lisbon treaty referendum in 2009

As  recently reported on this blog, the Unitary Patent Project of the European Union has been driven some big steps forward during December last year. The crucial dates were:

• 10 Dec 2012: The European Council endorses the EU Unitary Patent Package.
• 11 Dec 2012: The Advocate General of the CJEU hands down his opinion to dismiss the appeals of Spain (C-274/11) and Italy (IC-295/11) against enhanced cooperation in the field of unitary patent protection.
• 11 Dec 2012: The European Parliament approves the EU Unitary Patent Package.
• 17 Dec 2012: The European Council approves the EU Unitary Patent Package.

The texts finally adopted and approved by the competent EU institutions are the following:

• Proposal for a regulation implementing enhanced cooperation in the area of the creation of unitary patent protection, Regulation EU 1257/2012 (cf. consolidated text of 17/12/12 (PE-CONS 72/1/11); texts adopted on 11/12/12; cf decision-making monitor and procedure file),
• Proposal for a regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, Regulation EU 1260/2012 (cf. consolidated text of 12/12/12 (18855/2/11 REV 2); texts adopted on 11/12/12; cf. decision-making monitor and procedure file),
• Resolution on jurisdictional system for patent disputes (cf. latest draft agreement of 14/11/12; texts adopted on 11/12/12; cf. procedure file).

While the political class is celebrating its ultimate success (e.g. Commissioner Michel Barnier, the Council Presidency, the EU Parliament, and the EPO with its President Benoît Battistelli), the political driving forces predict (and expect) even more ambitious progress on the final meters of implementing the new post-grant patent infrastructure in (some parts of) Europe:

• 18 Feb 2013 – Signature of the UPC Agreement and start of the ratification process (UPC will enter into force upon 13 ratifications, including mandatory ratifications in UK, France and Germany, cf. Art. 59 UPC Agrmnt),
• 01 Nov 2013 – Full ratification of UPC Agreement expected,
• 01 Apr 2014 – Issuance of first unitary patents by EPO and Unified Patent Court ready to receive first cases.

The project, however, is not at all cut and dried and there certainly is no automatism leading to its implementation within the 25 EU member states that originally supported enhanced cooperation. In fact, there are more challenges ahead than one may expect, especially with respect to the national ratification processes, which are required as the UPC Agreement, as an international treaty, will transfer statutory legal rights (i.e. national patent jurisdiction) to the European level.

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