Dr. Boris Uphoff

In late March, news broke that the European Commission was drafting sweeping regulations on the licensing of standard essential patents (SEPs). Commentators predict the draft will be released in late April and, although this is an early draft that will likely evolve, below we offer the following initial observations. In its current form, the new regulatory framework would encourage increased transparency in SEP licensing through several new policies and procedures. In particular, the regulations would establish a “competence center” at the European Union Intellectual Property Office (EUIPO) to act as a sort of clearinghouse for SEP issues (both technical and economic). The EUIPO does not currently have patent expertise; EP patents are the purview of the European Patent Office (EPO), which is separate from the European Union and includes non-EU members.

As the UK indeed voted for Brexit, the Unitary Patent system will now have to be re-negotiated altogether. The Unitary Patent Regulation states that the Unitary Patent cannot start before the UPC Agreement has been ratified by 13 participating Member States, including the three Member States in which the highest number of European Patents had effect in 2011, i.e. France, Germany and the UK. That alone means that the Unitary Patent must be put on hold now the Brexit referendum has been approved. Indeed, as a non-member of the EU, the UK will not be able to further participate in the Unitary Patent. Without the UK, with its market size and its reputation for patent litigation, the Unitary Patent will lose substantial value.