Is it time to bury the UPC yet?

Just before Christmas, the Preparatory Committee for the Unified Patent Court (UPC) published an online article, looking ahead into this new year. Optimistic as usual, the committee expressed to be "hopeful the New Year will bring closure to [its] endeavours and the Unified Patent Court will become a reality". Some words were spent on the delay caused by the challenges to the German ratification of the Agreement at the German Federal Constitutional Court (GFCC), but most of the article was meant to inform the future users of the unified patent system about the provisional application of the Agreement in the months before the Court will actually start. The article included no words on Brexit and the as yet unclear future relation between the EU and the UK.

And it's not only the official Preparatory Committee that is still acting like the UPC is bound to start any moment now. Earlier this week, IP Watchdog, with help from the EPO, organized a webinar about the unified patent system that is 'targeted' to start in December 2018. Three Dutch IP firms, also together with the EPO, are even organizing a two day conference (€ 1499) in February with a Get ready for UPP Bootcamp, because "[at] the time of the conference the Sunrise register will be open" (quod non). Earlier this month, UK law firm Bristows used its own website to inform their clients about a note that a UK IP lobby organisation has sent to the British Government. Summary: The UPC must start as soon as possible. The UK, the London branch of the Central Division of the Unified Patent Court and - of course - British legal practitioners should be allowed to continue to participate in the unified patent system as if Brexit never happened.

In the 18 months after the Brexit referendum, the UK and the EU have hardly managed to agree to start negotiations about a transitional period that will start when the UK leaves the EU, 15 months from now. For the UPC Agreement to enter into force before the Brexit date of 29 March 2019, the sunrise period will have to start before the end of this year. Are there really IP professionals left who still think that within the next 12 months:

• The complaint at the GFCC will be dismissed,
• Germany and the UK will ratify the UPC Agreement, and
• Provisions will be agreed upon to allow the UK (and not other third countries like Switzerland and Norway) to act as a full EU member in patent matters and to continue hosting one of the three branches of the Central Division, after Brexit?

I don't think so. To me, the UPC looked fatally wounded on 23 June 2016 (the day of the referendum) and I haven't seen many signs of life since. However, that doesn't mean that I am ready to bury the idea of a unified European patent yet. For innovative businesses a unitary European patent will save a lot of costs and effort. Only one patent in one language (English only please) will be needed and only one annual renewal fee will have to be paid. Costs and effort that are much better spent on innovation than on legal advice and bureaucracy. Also freedom to operate studies will be easier and more complete when the same claims set is equally valid in the whole of Europe or, even better, in all EPC states.

Therefore, in order to revive the patent unification project, I propose the following step-by-step approach that may not lead to a unitary European patent in 2018, but is probably far more realistic than the 'let's pretend Brexit didn't happen' approach I'm witnessing in many recent publications about the UPC. As usual, the first step may be the hardest.

• Acknowledge the fact that the UPC in its current form will not see the light of day.
• Start negotiating necessary amendments to the relevant agreements amongst the 27 remaining EU members. Just a few suggestions from my side: 1) English only. This may be more acceptable for France and Germany now, since there are only two smaller EU countries left with English as their official language. 2) Don't bother finding a new city for the London court. Just send the work to Paris and Munich. 3) Reduce the renewal fees in view of the smaller geographical coverage in an EU that doesn't include the UK.
• Design a mechanism for non-EU EPC countries to join the system later.
• Start up the system in the EU only. If successful, add more EPC countries.

In theory, such a renegotiated unitary patent system can start as soon as the UK has officially left the EU. In practice, negotiations involving at least 27 countries typically take more than 15 months. But it's clear that a lot of time and effort can be saved by stopping to flog the dead horse.