February 1, 2018

The unitary patent and the Spanish position

In response to a parliamentary question made by the Socialist Deputy Patricia Blanquer, the Government of Spain has reiterated its opposition to join the Unitary Patent System. According to the Government, in addition to the fact that the projected system does not count on Spanish language as a working language, the fact that Spanish companies, especially SMEs, are not large holders of patents puts them at a disadvantage compared to the rest of companies, which as holders of patents will be able to choose the seat of the court and the language of the process in case of litigation.

Additionally, in case of litigation over the nullity of a patent, even in the case of conflict between two Spanish companies, the language of the process before the central divisions of the Unified Patent Court would be English, French or German. You can access the content of the question and the corresponding parliamentary answer in the following link.

After  the ratification of Latvia of the Unified Patent Court Agreement last January 11 (joining the previous ratifications of Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Lithuania, Luxembourg, Malta, Holland, Portugal and Sweden), the system remains pending for its entry into force of the necessary ratifications by the United Kingdom (currently under consideration in the British Parliament) and by Germany (where the ratification has been suspended by the appeal filed by an individual before to the German Constitutional Court.)

Given the forthcoming exit of the United Kingdom, a country that with the current design of the system should host one of the three central divisions of the Unified Patent Court, of the European Union scheduled for 2019, as well as the uncertainty derived from the appeal presented by a German patent agent before the Constitutional Court of this country against the German ratification of the system, there is some skepticism about the viability of the unitary patent system in the initial form in which it was conceived.