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IP Cases & Commentary – Details

3 July 2012

The Unitary Patent: European Council’s Conclusions of 29 June 2012 – An "Historic Breakthrough"?

David Al-Khalili

Following many years of deliberation and discord, the European Council boldly announced that an "historic breakthrough" has been made regarding the form and substance of the ever-stalling Unitary Patent package.

In relation to the Unified Patent Court, previous disagreement over its location has been resolved by the splitting of its functions among the three competing locations. The Central Division of the Court of First Instance of the Unified Patent Court (UPC) will be housed in Paris with ‘thematic clusters’ to be created in London and Munich. The London ‘cluster’ of the Central Division will hear litigation concerning chemistry (including pharmaceuticals and human necessities), whilst the Munich ‘cluster’ will hear litigation concerning mechanical engineering.

To the satisfaction of many practitioners and businesses, it also appears that the UPC may be formally separated from the Court of Justice of the European Union (CJEU) as the Council has recommended that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of unitary patent protection is deleted. Ultimately, the inclusion of Articles 6 to 8 would see the CJEU (a non-specialist court) having a say in often very complex intellectual property matters as well as leading to great delays. However, the European Parliament has just said that this deletion is not acceptable and it is likely that further ‘deliberation’ will now have to take place.

Whilst the location of the Court is one (theoretically) resolved issue, it is still the case that there are a number of other matters which have not been dealt with to everyone’s satisfaction, including the inability of EU domiciled defendants in infringement actions to request a transfer from a local division to the new Central Division. We therefore keenly await the European Parliament’s vote on the proposals which had initially been scheduled for 4 July 2012. However, in light of the Council’s previously mentioned recommendations to delete Articles 6 to 8, the vote has been delayed to a date yet to be decided.

We look forward to providing you with updates on further developments as and when they arise.


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