This Kat has previously posted a couple of concerns about the implications of some details of the unitary patent and the Unified Patent Court Agreement - see here and here.
Now this moggy is concerned about the UK ratification of this legislation. He has been reading the recently published Intellectual Property Bill, and now he has just seen the interesting comments from Alan Johnson posted by blogmeister Jeremy below. But this does not address a further issue that has been in the mind of this feline. It may, prods Merpel, be a small matter, but we are now at the stage where most of the large matters have been raised, and the small matters too require attention.
The Bill gives (at Clause 16) the Secretary of State power to make provisions that are needed to give effect to the UPC Agreement (subject to the safeguard that any draft order must be laid before and approved by each House of Parliament). However, there is no power in the Bill to make any order in relation to the Unitary Patent.
Nevertheless, Article 4(2) of the Regulation creating the Unitary Patent requires Member States to make arrangements to remove the national effect of a European patent once it has unitary effect. It states:
The participating Member States shall take the necessary measures to ensure that, where the unitary effect of a European patent has been registered and extends to their territory, that European patent is deemed not to have taken effect as a national patent in their territory on the date of publication of the mention of the grant in the European Patent Bulletin.The IPKat can see no such proposed measures in the Bill. And he cannot see how the UPC and the Regulation can properly come into effect without such arrangements having been made.
"But EU Regulations have direct effect" the IPKat hears his readers cry. That may indeed be true, but surely a Regulation requiring Member States to perform an activity to then has to be followed by the Member States performing the required activity - in this case, making changes to their national law. Alternatively if the UK does not introduce any such measure, does it mean that a Unitary Patent will keep its national effect in the UK, in additional to its trans-EU-(minus a few countries)-effect?
Merpel suggests that it is possible that the Government is planning a further Bill, but it seems to the IPKat hardly likely that HMG is intending to make parliamentary time for the passing of two separate intellectual property Bills when one would clearly do. Can it be that the terms of the Regulation have not been properly considered? Or is there something that your humble servant has missed?
As usual, dear readers, at this point the IPKat turns over to you for the wisdom of the crowd.