Status

• Legislation formally completed.
• It will only apply if the Agreement has entered into force (Art. 18(2)).
• On the entry into force of the Agreement, see there Art. 89(1): if at least 13 Member States have ratified the Agreement, including UK, France, and Germany.

Relevance

• Timing and geographical scope of application of the unitary effect of EU patents (Art. 4 (1) and Art. 18 (2))
• Guidelines for the level of annual renewal fees (primarily Art. 12 (3) (a)) – there is no fee table yet, however
• Determination of the applicable national law for the patent as an object of property (Art. 7)
• Determination of the applicable national law for compensation for damages (recital 13; supplemented by Art. 68 Agreement)
• Determination of the applicable national law for the scope of protection of the EU patent(Art. 5 (3) in conjunction with Art. 7, in conjunction with Art. 25 and 26 Agreement)

Status

• Signed on February 19, 2013 (excluding Poland and Spain; Italy without consent to unitary effect, i.e. only for conventional EP patents)
• Entry into force only when ratified by at least 13 Member States, including the UK, France, and Germany, Art. 89(1).
• To date (June 29, 2020), sixteen Member States have ratified. Since Germany is not among them, however, the Agreement has not yet entered into force.

Relevance

• The content extends significantly beyond what the title suggests. 
• It also applies to conventional EP patents, see Art. 2(g) in conjunction with Art. 3(c) and (d).Opt-out regarding the exclusive competence of the Court is possible in accordance with Art. 83.
• The Agreement also includes substantive patent law:
  • Art. 25: Direct use of the invention
  • Art. 26: Indirect use of the invention
  • Art. 27 – 29: Limitations, Prior use, Exhaustion

  As part of its scope of application, the Agreement takes precedence over national law. In addition, non-uniform national law might also apply (Art. 5 (3) in conjunction with Art. 7 Regulation (EU) 1257/2012).

• Art. 68: Compensation for damages
• This provision is likely not conclusive. In accordance with recital (13) of Regulation (EU) 1257/2012, the relevant national law is therefore also applicable separately for each country.
• Art. 6 – 14: Institutions / Composition of the court
• Procedural law
• Art. 31 – 33: Competence of the courts
• Art. 33 is of particular importance for the procedure, supplemented by the "Rules of Procedure."

The following will be new for German patent lawyers:

• Action for declaration of non-infringement of patents will be easily possible, Art. 32 (1) (b)
• Action for annulment possible even in case of an ongoing opposition period and in case of an ongoing opposition procedure; there is no provision similar to Section 81 (2) sentence 1 German Patent Act; Art. 33 (8) clarifies that an action for annulment is also possible without notice of opposition.
• "First come, first serve" situations: Example: If the applicant in the infringement case anticipates the action for annulment, it will remove the applicant in the annulment case's opportunity to submit an action for annulment to the central division, Art. 33 (4) sentence 2.

No provisions on patent vindication.