On 18 March 2015, the Luxembourg Parliament approved the legislation ratifying the Unified Patent Court Agreement, the international treaty which establishes the Unified Patent Court. This ratification constitutes another step towards the implementation of a patent protection covering 25 EU Member States.
After several failed attempts over the past forty years to create a single patent which covers the territory of all EU Member States, twelve Member States1 addressed formal requests to the European Commission in 2010 to establish enhanced cooperation between themselves to create unitary patent protection.
Through the contemplated unitary patent system, European patents (delivered by the European Patent Office in Munich) will, at the request of the relevant right holder, be granted a unitary effect for the territory of all participating EU Member States (the Contracting Member States). Currently, 25 of the 28 EU Member States have decided to participate in this new patent system. National patents and classical European patents will continue to exist next to the unitary patent.
To implement the unitary patent protection, several legal instruments have already been adopted at the EU level (including Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, Regulation 1260/2012 relating to the applicable translation arrangements and Regulation 542/2014 regarding the rules to be applied with respect to the Unified Patent Court and the Benelux Court of Justice).
The entry into force of this unitary patent system depends on the entry into force of the Unified Patent Court Agreement (UPCA). This agreement establishes the Unified Patent Court (UPC), which will ensure the uniform applicability of patent law throughout the territories of the Contracting Member States. The UPC will be part of the Contracting Member States’ judicial system and will (after a transitional period) have exclusive jurisdiction in respect of European patents and European patents with unitary effect.
The Court of First Instance of the UPC will be composed of a central division (with seats in Paris, London and Munich), as well as local and regional divisions. The preparatory documents of the Luxembourg law ratifying the UPCA confirm that no local division of the UPC’s Court of First Instance will be created in Luxembourg. The Court of Appeal and the Registry will be located in Luxembourg.
The UPCA needs to be ratified by at least 13 EU Member States to enter into force. Ratification by Germany, the United Kingdom and France is mandatory, since these are the Contracting Member States in which the highest number of European patents had effect in 2012. To this date, the UPCA has been ratified by Austria, Belgium, Denmark, France, Malta and Sweden. With the recent vote of the Luxembourg Parliament, Luxembourg thus becomes the seventh EU Member State to ratify this treaty. The UPC is expected to be fully operational during the course of 2016.
1 Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United Kingdom
