The European Commission has called on EU member states to rapidly roll out the long proposed unitary patent system. This means that the Unified Patent Court (UPC) could be operational and Unitary Patents available in early 2022.
The unitary patent system was dealt a blow by Brexit, with the UK formally withdrawing from the system in July 2020. A constitutional challenge was also upheld in Germany to their proposed ratification of the UPC Agreement, owing to the legislation not having been approved by two thirds of the members of the German parliament (Bundestag). This cast great uncertainty over the future of the unitary patent system.
However, a new draft ratification bill was passed recently by the Bundestag, with the required two thirds majority. The European Commission see this as "the main missing step in ensuring the launch of the unitary patent system".
Once Germany fully ratifies the UPC agreement (subject to any further constitutional challenges), the EU member states then need to agree to launch the "period of provisional application" that will finalise the institutional and practical aspects for setting up the UPC. This will then allow the full launch of the unitary patent system
It is still not fully clear how the UPC Agreement and the court system will be adapated to cope without the UK's involvement. The UPC Agreement had required the UK's participation and a division of the court was set up in London. However, the European Commission do not see any significant barriers, commenting, in their Action Plan that "the UK's withdrawal from the EU is not expected to hamper the launch of the unitary patent system".
While there is still much work to be done, it looks like the unitary patent system, which was initially due to come into being in 2017, could finally be on the brink of launching.
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