Germany Heads For Ratification Of Unified Patent Court; Spanish MPs Push For Membership

Germany, one of three countries whose signature is vital if the new Unified Patent Court is to get up and running, has taken another step towards ratification of the UPC agreement, while the Spanish parliament has approved a motion urging the government to drop its opposition to Spain’s becoming part of the new system.

In another step in the process towards implementing the EU’s new unitary patent system, the lower house of Germany’s parliament (Bundestag) has passed legislation allowing the country to ratify the Unified Patent Court Agreement (UPCA).

Two bills have been passed by the Bundestag, one of which will authorize ratification of the UPCA, while the other will amend German patent law accordingly, says law firm Bristows,

The bills will now be sent to the upper house, the Bundesrat (Federal Council), for approval. Once that is received, according to Bristows, they will need to be countersigned by the Federal government, certified by the country’s President, and published in the federal gazette.

For the new court to go ahead, the UPCA must be ratified by at least 13 countries, including France, Germany and the UK. France has already done so, and German and UK ratifications are expected by April, opening the way to both the UPC and the unitary patent coming into effect by the end of the year. (Also see "Firms Need To Think Fast As Europe’s New Patent Court Eyes December Start" - Pink Sheet, 23 Jan, 2017.)

Although the Brexit vote has cast some doubt over the UK’s future participation in the UPC and the associated system of unitary patents with pan-EU validity, the government has said it still intends to press on with ratification of the UPCA, and then see what happens. London has been chosen to host the pharmaceuticals and chemicals section of the court’s central division.

Will Spain Reconsider?

Meanwhile, efforts are under way to get Spain to join the new patent system. The country has refused to play along for a number of reasons, not least the fact that Spanish is not recognized as an official language for the purposes of the patent system.

But last week, the Spanish parliament voted in support of a non-legislative proposal filed by the Socialist Party (PSOE) in an effort to persuade the government to change tack and take the necessary steps to allow Spain to join the new patent system.

In an explanatory note, the party said that that maintaining Spain’s opposition to the unitary patent system “solely because of the language regime would seriously damage the competitiveness of our companies and our process of innovation” once the new system entered into force.

Remaining outside the UPC system would mean high costs for Spanish companies as they would have to continue to validate their patents in each country where they wanted to enforce their patent rights, it observed.

Patricia Blanquer, a PSOE MP and author of the motion, said that the vote was “a first and very important step” towards getting Spain into the unitary patent system and that the Partido Popular would need to explain why it wanted the country to stay outside the unitary patent system.

“It does not make sense that Prime Minister Mariano Rajoy and his Minister of Economy talk about deepening the European project and at the moment of truth, his party, the PP, votes against one of the most important EU projects in the field of innovation,” Blanquer told the Kluwer patent blog.

While the motion has no legislative or binding effect, it is expected to have some influence as it was supported by all parties apart from the Partido Popular, which has led a minority government since 2016. Law firm Bird & Bird commented that such a grassroots consensus was uncommon in Spain, and showed that the government and the PP were “in a weak position” given that the PP has only 135 of the 350 seats in Congress.

The motion has also “caused a lot of expectation” among the legal profession, lawyers and judges, patent agents and in other government bodies such as the Spanish Patent Office, Bird & Bird commented. “For the first time in years there is a real opportunity that Spain will participate in the UPC and contribute with the other member states to a better patent system in the European Union,” it said.

The motion also suggests that Spain should take advantage of Brexit to ask for the London seat of the UPC’s central division to be located in Spain. However, with the UK now intending to proceed to ratification, the seat may not even be up for grabs.

From the editors of Scrip Regulatory Affairs.