As inferred from the document published on 27 February 2020, which lays down the foundations of the future relationship between the UK and the EU, the British government points out that the mandate arising from BREXIT cannot include any subordination of its legal or institutional framework to that of the EU.
This general policy forecast seems to put an end to post-referendum speculation, which had pointed to the path of a possible bilateral agreement between the UK and the EU to keep this country within the Unitary Patent system, despite the fact that its future was already outside the Union.
The Unitary Patent is a complex institutional and legislative framework that aims to establish a patent with unitary effects for the entire EU area, without having to go through the formalities of validation (or nationalization) of patents granted by the European Patent Office nor filing national applications in each National Patent Office.
This is the result of decades of frustrated attempts within the then EC to provide itself with a unitary mechanism of protection in the field of patents, similar to the one adopted at the time for other figures of Intellectual Property, such as EU TradeMarks or Community Designs, and which finally came to fruition following a procedure of a very exceptional nature in Community law, namely enhanced cooperation. This modus operandi was not without controversy, because it precisely enables the rule of unanimity on which all the advances in EU integration are based on to be broken and, ultimately, also divides the territorial implementation of the matters subject to this exceptionality.
The legal coverage are two EU regulations that regulate the aspects of the system under Community competence and an international treaty, to be adopted by each participating state (Spain is not one of them at the moment) so that the signatories yield exclusive national competences in favour of the EU and in particular, those referring to the jurisdictional power of its courts to deal with patent matters. This transfer is based on the Unified Patent Court, responsible for the judicial control of the system and which, as a tool of strictly Community scope, is ultimately subject to the EU Court of Justice.
Out of this whole normative block, the one corresponding to the International Treaty is the most important obstacle for its entry into force, since as such a treaty requires national ratification by each state. Prior to the BREXIT referendum, the Preparatory Committee for the implementation of the system had set 2017 as the key year, but several obstacles, such as the situation in the United Kingdom and pending appeals to the German Constitutional Court, are delaying the achievement of the quorum of ratifications required for its entry into force.
Apart from these obstacles, right from the start, the Unitary Patent has been the subject of constant controversy between the different groups of economic interests and EU countries, which is only a reflection of its long journey of negotiation.
For some, it is a historic opportunity to provide the European economy with a legal figure with Community coverage, which strengthens the competitiveness of its R&D and mitigates the inefficiencies of national territoriality of patent rights, compared to the large competing blocks of China and the USA. For others, it is rather a wasted scheme, due to an alleged bias towards large corporations, many of which are not necessarily European, which will be able to benefit from their asymmetric capacity to bear the costs of litigation against the broad fabric of SMEs in the EU, thus leaving them more exposed to the risks of complex transnational procedures for patent infringement or invalidity.
Article by Joan Salvà.