The construction of the unitary patent is one of the longest stories in the building of the Union.

Let’s look together at the key stages of this construction.

Origins

Indeed, in parallel with the adoption of the European Patent Convention (or EPC) in 1973 (which entered into force in 1977), a Convention on the Community patent was signed in 1975 but never entered into force (due to the lack of ratification by the Member States in 1990).

In 2000, the Council proposed a new regulation on the Community patent, but once again this ended in failure (in 2004) due to the opposition of many countries regarding the translation options chosen.

Attempts at compromise

In 2009, the Swedish presidency decided:

  • to rename (rightly so) the Community patent as the unitary patent;
  • to place translation-related issues (which often give rise to controversy) in a separate agreement;
  • to request an opinion from the Court of Justice regarding the planned agreements.

This made it possible (at the end of 2009) to reach an agreement on the non-sensitive aspects of the agreements (i.e., everything except translations).

In 2010, the Belgian presidency sought to find a compromise regarding the translation regime:

  • Any patent in German or French will be translated into English;
  • Patents in English may be translated into any official language of a contracting state;
  • In the event of a dispute, judges will take into account whether the infringer knew or should reasonably have known that they were infringing due to the lack of translation.

Nevertheless, this was not enough, and in November 2010, the Member States of the Union acknowledged that they could not reach a compromise.

Enhanced cooperation

For this reason, enhanced cooperation (Article 20 TEU) was launched at the request of 12 Member States (quickly joined by 25, except Italy and Spain).

The authorization for this enhanced cooperation was granted by the Council on March 10, 2011.

Italy and Spain (which opposed the planned translation system and thus did not participate in the enhanced cooperation) brought an action before the Court of Justice of the European Union to annul the Council’s decision, but on April 16, 2013, the Court dismissed their claims (C-274/11 and C-295/11).

In parallel, on December 17, 2012, Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection was adopted, along with Regulation 1260/2012 (on the same day) concerning translations.

These two regulations were challenged by Italy and Spain. However, once again, the Court of Justice (C-146/13 and C-147/13) dismissed their claims on May 5, 2015.

These decisions ultimately led Italy to request participation in the enhanced cooperation, which was formally accepted on September 30, 2015.

Difficulties with Great Britain

In 2016, Great Britain decided to leave the European Union.

This tied the brains of the brightest legal minds in EU law into knots…

Indeed, before their departure in March 2020, the British still ratified the UPC Agreement in 2018.

Several questions therefore arose:

  • Could Great Britain participate in enhanced cooperation despite its departure, given that it ratified before leaving? (In reality, this question may never find a definitive answer, as the British indicated they did not wish to participate in this cooperation.)
  • Does Great Britain’s ratification count toward the preamble of the UPC Agreement, which requires ratification by 13 Member States and the three Member States with the highest number of European patents at the time of the agreement’s signing?
  • Is it possible to change the location of the central division currently based in London without having to go through the ratification process again? Could Article 87(2) of the UPC Agreement be used to amend this agreement?
  • What happens to the British judges who were appointed?

Difficulties with Germany

Regarding Germany, a number of constitutional questions were raised, both in form and substance.

While the substantive questions were dismissed by the Constitutional Court (Bundesverfassungsgericht), the latter ruled in March 2020 that the German ratification was invalid because the parliament should have given its approval with a two-thirds majority (in this case, only 35 parliamentarians were present).

This formal difficulty was ultimately overcome.

The culmination (2021-2023)

The Bundestag readopted the ratification law at the end of 2020, this time with the required two-thirds majority. After new appeals were filed, the German Constitutional Court dismissed them in July 2021.

Germany then enabled the provisional application of the agreement (2022) and deposited its instrument of ratification on February 17, 2023. This deposit triggered the entry into force of the agreement on June 1, 2023, preceded by a “sunrise period” from March 1 to May 31, 2023 (see The transitional period and the sunrise period).

As for the United Kingdom, it definitively withdrew from the system in 2020: the London section of the central division was redistributed (Milan, Paris, and Munich). After nearly half a century of development, the unitary patent has finally become a reality.