17 October 2017
Reporter: Barney Dixon

Businesses should prepare for UPC, despite uncertainty

Businesses should make preparations for the Unified Patent Court (UPC) and unitary patent, despite mounting uncertainty surrounding when, if at all, the court will come into effect.

Speakers at the London IP Summit addressed the uncertainty of the UPC with the UK’s vote to leave the EU and the recent constitutional complaint halting the UPC’s passage through German courts, but maintained that businesses should be prepared.

Tim Frain, head of IP regulatory affairs, patent business at Nokia, explained that a real problem would be getting businesses to trust that the UPC will actually come into force.

Frain added: “We’re telling them every year to be prepared … regaining that trust will be hard.”

However, Frain suggested that significant delays to the court could prove “beneficial for the system”.

He said: “If the UPC starts before the UK leaves the EU, we’d automatically be in the unitary patent. The question is, what happens after the UK leaves the EU?”

“The unitary patent is not an international treaty and is established by EU regulations. That makes it a problem for the UK and brings into question the continuity of rights after Brexit. That creates added uncertainty, needlessly and adds a new burden for businesses that will, at least, have to re-register rights in the UK.”

Frain said that if the delay is long enough and the UK has already left the EU when the court comes into effect, it could remain in the UPC, but not have the unitary patent.

“There is precedent for this as Italy signed up to the UPC, but not the unitary patent,” he said.

The constitutional complaint at the German court persists, with several organisations submitting amicus briefs on the case. The expected deadline for this was the end of October 2017, however this has been extended to the end of the year.

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