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UNITARY PATENT AND THE UNIFIED PATENT COURT

EUROPE ADOPTS NEW TOOLS TO PROMOTE INNOVATION

1st edition

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INTRODUCTION

The referendum of 23 June 2016 decided in favour of the leaving the .

In the opinion of a large number of specialists in the field of industrial property, this upheaval was going to sign the death warrant of the Unified Patent Court and the which, since their first concrete advances following the Treaty, were however experiencing difficulty in being brought to the baptismal fonts.

On 28 November 2016, the British government announced its firm wish to swiftly ratify the Agreement on the Unified Patent Court. This turnaround therefore revived the hope of implementation of the Unified Patent Court with the possibility of seeing the grant of the first unitary patents around the end of 2017. Negotiations on the conditions of the United Kingdom’s exit from the European Union will have to be instituted after the mandatory notification to the European Council under Article 50 of the European Union Treaty. It then remains to be seen whether , the last country whose ratification is mandatory to ensure the effect of the Unified Patent Court, will take advantage of this to suspend filing its instruments for ratification to obtain other guarantees within the framework of the future relations between the United Kingdom and the European Union.

These latest dramatic turns of events have led us to hope for a prompt effect of this new law of invention patents in Europe, and it is in this context that a number of national and European patent attorneys of REGIMBEAU have looked into the various rules of law that will govern the future unitary patents and the Unified Patent Court.

We have therefore scrutinised all these regulatory and legislative texts and attempted, in this work, to proceed with organising our analyses of the various issues with which we will be faced tomorrow. Such a work, undertaken by practitioners for the use of practitioners, must be considered as a first draft akin to a first tidy-up of a toolbox comprising a huge number of instruments, in order to facilitate its practical use.

Of course, this first collaborative work will necessarily have to evolve in the future, in order to perfect, even correct, certain misunderstandings that are might always happen in such exercise of exegesis of European legislative and regulatory texts.

Francis AHNER

REGIMBEAU Partner

Europe adopts new tools to promote innovation 13

CONTENTS

REFERENCE TEXTS ...... 15 THE MEMBER STATES ...... 17 LIST OF ABBREVIATIONS ...... 19 PART 1 - INTRODUCTION ...... 21 PART 2 - THE PROCEDURE BEFORE THE UPC ...... 37 PART 3 - CONDITIONS OF VALIDITY AND GROUNDS FOR REVOCATION BEFORE THE UPC .. 161 PART 4 - PROTECTION CONFERRED BY THE PATENT AND ACTS OF INFRINGEMENT ...... 173 PART 5 - THE LANGUAGES OF THE UNITARY PATENT AND THE UNIFIED PATENT COURT .. 195 PART 6 - EVIDENCE ...... 209 PART 7 - SUPPLEMENTARY PROTECTION CERTIFICATES ...... 227 PART 8 - MEDIATION AND ARBITRATION ...... 233 PART 9 - REPRESENTATION BEFORE THE UPC ...... 239 PART 10 - GENERAL RULES OF PROCEDURE ...... 251 PART 11 - WHAT CONSEQUENCES ON LICENCE AGREEMENTS? ...... 293 ANNEX ...... 301

Europe adopts new tools to promote innovation