By Michael Rosen

The decades-long dream of a single, unified European patent system is one step closer to fruition, as Austria formally joined the court last month, enabling official preparations to get underway. Patents operate according to geographic territory — as has been the case throughout Europe, where an inventor must apply for and enforce his or her patent rights in each separate European country. Applicants file their patent applications at the European Patent Office (EPO), but they must then “validate” their patent in each European nation. Similarly, in litigation, the patent owner must file suit in each country where he or she seeks remedies — an expensive process that can yield inconsistencies.

Thus, nearly a decade ago, European Union member states voted to implement a continent-wide Unified Patent (UP) and United Patent Court (UPC). They aimed to “supplement and strengthen the existing centralised European patent granting system” and “offer users of the patent system a cost-effective option for patent protection and dispute settlement across Europe.”

Yet the central patent and court would become effective only after 13 separate countries formally ratified the agreement, a prospect cast into major doubt when the United Kingdom voted for, and then executed, Brexit. The UK announced that it would “not be seeking involvement in the UP/UPC system” because “participating in a court that applies EU law and [is] bound by the [EU Court of Justice] is inconsistent with our aims of becoming an independent self-governing nation.”

At the time, countries such as Germany and France, which had already ratified the agreement, put a brave face on the debacle, insisting that “if the UK is no longer willing to cooperate, the remaining European countries must move forward with the construction of the UPC.” But skepticism abounded, including in this space.

However, last month, Austria ensured that Britain’s absence from the Europe-wide plan would not doom it, officially depositing the 13th ratification instrument and triggering the process for establishing the UP and the UPC. (Find a helpful map identifying the relevant countries’ ratification status here.) The preparatory committee celebrated “the start of the Provisional Application Period (PAP) and the birth of the Unified Patent Court as an international organisation.”

Over the course of the calendar year, and possibly into early 2023, the relevant authorities will lay the groundwork for the UP and UPC, including establishing administrative, advisory, and budget committees; empaneling judges; and hiring staff. Once established, the court will hear cases in both Paris and Munich, and appeals will be heard in Luxembourg.

At long last, inventors will be able to efficiently, economically, and consistently protect and vindicate their patent rights throughout Europe. As EPO President António Campinos recently said, “It will be possible for innovating businesses, scientists and inventors to effectively protect their new technologies with a cost-attractive patent uniformly covering the territory of all participating EU member states.” So while Brexit may have scuttled various inter-European initiatives, the fire of a single EU patent continues to burn — and will burn even brighter in the coming months.

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