17 December 2013Big Pharma

Battistelli buoyant on Unitary Patent

European Patent Office (EPO) president Benoît Battistelli has praised the “steady” progress that the Unitary Patent and its associated court have made this year.

In a blog post dated December 16, Battistelli said the outlook for ratifying the Unified Patent Court (UPC) was positive, meaning that the first patent could be issued in 2015.

“This will also ensure that time remains available in the coming year to fine-tune the preparatory work for a system which will be sound and will deliver the highest quality,” Battistelli claimed.

The European (EU) parliament and council approved the regulations governing the unitary patent deal in December 2012, while EU ministers signed an agreement in February this year that establishes the UPC.

Since then, Battistelli noted, the select committee overseeing the patent deal has become operational (in March) and the participant member states have met seven times.

“Important decisions on the committee’s rules of procedure have been adopted. Significant advances have been made in the drafting of the legal texts for the implementation of the unitary patent, which would make a final decision possible in the first half of 2014,” Battistelli said.

“The practical implementation of the compensation scheme for translation costs and the procedure for setting fee levels has also been discussed,” he added.

Battistelli praised the preparatory committee, a group responsible for setting up the UPC, where unitary patents will be litigated. In a number of cases, he noted, the same member state representatives are participating in both the select and preparatory committees.

“Given the close connections between the two parts of the unitary patent package,” he said, this is “important for the success of the venture as a whole”.

The Brussels I Regulation, which will bind UPC judgements in law, was passed by the EU council in December, and represents another “decisive step”, said Battistelli, adding that he expects the EU parliament to approve the regulation in the first half of 2014.

While Battistelli’s report is upbeat, said Jonathan Radcliffe, partner at Charles Russell LLP, “like most Christmas lists it contains its fair share of ‘optimistic’ gifts that no one is realistically going to give”.

“There is still much to be done before the new patent and UPC system go live, ranging from structural issues such as finalising the details of the various sets of rules and procedures, through to agreeing budgetary contributions from member states and the commissioning of a new UPC IT system,” Radcliffe said.

“It must also be given a political sign off, which is still by no means certain – including the recent announcement that Denmark is putting the whole issue to a national referendum.

“Implementation in 2015 was always going to be a stretch, no matter how much it is wished for,” Radcliffe explained.

Battistelli’s claim that the first patent could be “issued” in 2015 is confusing, said Avi Freeman, partner at law firm Beck Greener, as this term could refer to a patent application or a granted patent.

“If he means ‘granted’ then it’s entirely unrealistic, so I can only think he is referring to ‘filed’, which is certainly possible.”

Even if the first patent is filed in 2015, said Freeman, it would not be published for another 18 months and not granted for another 12 months thereafter “at the very quickest”, taking the grant date to about 2016 or 2017.

“While we are closer than we have ever been, the timescales look optimistic, however you understand it (file and grant),” Freeman said.

To date, Austria is the only UPC signatory to ratify the court package. The remaining signatories are: Belgium; Bulgaria; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Latvia; Lithuania; Luxembourg; Malta; the Netherlands; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Sweden; and the UK.

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