Around this time last year, it appeared that the commencement of the Unitary Patents System was imminent as reported in our article here. However, the commencement of the system and of the Unified Patent Court remains uncertain pending a constitutional challenge in Germany and also the UK’s final resolution of its Brexit arrangements.
Although the UK has now ratified the UPC Agreement, Germany must also ratify it before the Unified Patent Court can commence. In addition, there will still be a need for the UK’s Brexit arrangements to provide for the possibility of references to the CJEU on relevant issues, none of which has been finalised as yet. As far as Ireland is concerned, before it can join it must hold a referendum on ratification, but no timetable has yet been set by the Irish Government.
This leaves European patent owners up in the air. Many will wish to “opt-out” of the new system during the pre-commencement “sunrise period” but at this moment no-one knows when this period will start. As there will be a limited timeframe to adopt a position and determine which patents should be “opted out” the best advice is to prepare in advance and be ready when and if the system gets a green light to proceed.
