Germany may be the big block to getting Europe's new patent system up and running by the end of 2016

I was in Brussels yesterday for a joint event organised by the EPO and OHIM. Entitled “IP essentials for EU officials” it was, as the name suggests, an overview of the wide range of IP issues currently on Europe’s in-tray. As well as EU officials, those in attendance included representatives from the European Parliament, various NGOs and several national patent and trademark offices.

Not surprisingly, there was plenty of discussion about plenty of things, but one of the main topics of conversation was progress towards the launch of the EU unitary patent and the Unified Patent Court (UPC). From what I gleaned, it looks like there is a high level of confidence that all the formal preparatory work around the rules, structures and fees will be completed by the middle of next year. In theory, that means things could be up and running before the year end. However, there is an emerging spanner in the works: the ratification process.

In order to come into force, the UPC Treaty needs to be ratified by 13 member states, three of which have to be France, Germany and the UK. So far, just eight – including France – have done so. At this stage, veteran EU watchers will expect me to say that the big hold-up is coming from the UK, but that is not the case. Everyone I spoke to, whether based at the Parliament, the Commission or the EPO, said that they expect the UK to sign up next year, and that the UK government has effectively promised that this will be the case.

Instead, the concern is over Germany. Right now, there is absolutely no indication from Berlin of when the country’s ratification might take place. Indeed, there was some suspicion among some of those I spoke to that officials in the country no longer see the UPC as a priority. The government, they said, has taken its eye off the ball thinking all the work is done; this has allowed the administrators, who have been left to dot the i’s and cross the t’s, to slow everything down. At that level in Germany, I was told, there is a feeling that the country is perfectly capable of going it alone and that it does not need the UPC.

Now, I don’t know if this is just speculation or whether there is something more solid there (something else I have heard is that Germany is determined to be the thirteenth country to ratify, so being the symbolic firer of the starting pistol); but it is a fact that as one of the prime movers behind the UPC, and after getting much if not most of what it wanted from the agreed package, you’d have expected that Germany would have been at the head of the queue to get everything finalised. That has not happened, though.

It is also the case that Germany is enjoying something of a patent litigation boom right now, with its courts becoming increasingly attractive to foreign plaintiffs. More generally, German patent holders are the dominant force among those owning European rights. From the point of view of an administrator, what is not to like about how things are? Why would you want to change?

Of course, this does not mean that Germany will not now ratify the UPC, it certainly will. But before that happens it could be that some political pressure is going to have to be applied – both internally by German industry and internationally by other EU member states. That might happen quickly or it might take some time. Right now there is silence, so no-one knows what the Germans are thinking.

All of the above leaves us with one key takeaway: it could well be that this time next year the new UPC system will be up and running in Europe, and it would be prudent to base your plans on that being the case; but do not be surprised to still be waiting for final confirmation of launch either. After all, I guess, Europe would not be Europe without endless delays.

If any German readers have info that may shed further light on this, please get in touch.

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