More Brexit & IP Concerns for Global Businesses

Published on June 28, 2017

The technical world and its denizens (“techies”) live in a world that to outsiders seems to lie outside the “real world,” and it’s a world with its own language (“geekspeak”). This language relies heavily on acronyms for brevity and conciseness. These acronyms only work if everyone understands the meaning behind the letters. That is often not the case, as is exemplified by UPC, Unified Patent Court.

What does UPC mean?

UPC in this context does not have a common connotation. It may have several different meanings – depending on your segment in the tech world. Most consumers automatically think that the UPC stands for “Universal Product Code,” which deals with barcodes. Others may assume that it means Universal Parallel C, a programming language, or Uniform Plumbing Code, or for those in the wireless world, Uplink Power Control. For the network nerds, it means Usage Parameter Control, found in Asynchronous Transfer Mode networks. Interestingly, almost all of these UPC connotations have meaning in the Unitary Patent System (UPS) with its Unified Patent Court.

Brexit Implications for the UPC

The Brexit vote in the United Kingdom has delayed the implementation of the Unified Patent (also known as a Unitary Patent) and the Unified Patent Court, both of which were expected to start operation in early 2017. On November 28, 2016, the UK announced that it would ratify the UPC Agreement. This announcement came after the Brexit vote on June 23, 2016, and means that the UPC system will move forward. The Preparatory Committee announced that the uncertainty over the protocols and the UK election have caused further delays. The system is now anticipated to begin in early 2018.

Currently, it is likely that the UK will be able to participate in the UP/UPC system, even after Brexit. However, UK Prime Minister Theresa May has made statements that may complicate this participation. Her comments that the UK will not accept the supremacy of the European Court of Justice will make participation a daunting prospect.

What is the Unified Patent System and what does it mean for global business?

The Unitary Patent System, when implemented, will provide a new type of European patent that would be valid in the participating member states of the European Union (EU). Unified or Unitary Patents would make it possible to get patent protection in up to 26 EU Member States by submitting a single request to the European Patent Office (EPO). This has the potential for considerable cost and time savings for applicants. Once the system is in place, a patent could be registered for unitary effect upon grant.

Currently, patent protection in the EPO is obtained by a national patent or a European patent. The EPO provides a centralized examination process for applications, which saves the costs of parallel applications in multiple countries. This system also provides for high quality granted patents that are respected worldwide. A downside to the current structure is the need to validate and maintain the patent in each country where protection is desired. This is often a time-consuming and costly process, as validation requirements vary from country to country and may include: translation costs, validation fees, and attorney fees.

This process would replace the validation procedure that is currently required. The Unitary effect provides a single renewal fee, a single object of property, and a single court, the Unified Patent Court. Uniform protection is also an appealing prospect. The downside is that infringement and revocation proceedings are decided for the EU as a whole, and not each country individually.

Advantages of a Unitary or Unified Patent system:

Under the Unified Patent or Unitary Patent System, there would not be a complicated and expensive national validation processes. The EPO would act as a one-stop-shop, providing a simple registration of a Unitary Patent.
No fees are due for the filing and examination of the request for unitary effect for the registration of a Unitary Patent.
No post-grant translations would be necessary once a six-year transition period has elapsed. In the interim, translations would be required for information only and would not have any legal effect.
Also, entities based in the EU, such as natural persons, non-profit organizations, universities, and public research organizations, can benefit from a new compensation scheme that will cover translation related costs if the patent application was filed in an official EU language other than English, French, or German. These entities will be paid EUR 500 when their Unitary Patent is registered.

Simplified Maintenance Plan

Additional advantages accrue from a simplified maintenance plan. Currently, each country where a patent is validated has maintenance fees and schedules. This requires great vigilance on the part of patent owners to track and ensure multiple payments on a varying schedule. In direct contrast, Unitary Patents have one procedure, one currency, and one deadline, with no obligation to use a representative. The planned renewal fees have been set at a reasonable cost, especially for the first ten years, which is the average lifespan of a European patent.

However, under the Unitary Patent System, applicants may also save on indirect costs. The more countries in which a patent is validated, the greater the savings with the Unitary Patent System. The simplification also extends to the post-grant administration, with a centralized register handled by the EPO. An online register will also be provided and will provide legal status information on Unitary Patents, including licenses and transfers. This process should foster technology transfer, partnerships, and innovation funding. Finally, even Enforcement will be unified as the Unified Patent Court will provide laws governing the scope and limitations of the rights and remedies available in infringement cases.

For more information, please email or call: Roberta@lozaip.com | 858.240.2272

More Brexit & IP Concerns for Global Businesses