We understand from the Commission that the question of how SPCs are to be granted for unitary patents is now under active consideration: the Commission is well aware of the need to make rapid progress, albeit that a date for publication of a conclusion or draft amendments remains unclear.
The issue is, of course, fraught with difficulties. The concept of a unitary patent leading to purely national SPCs is counter-intuitive, but as SPCs are closely associated with MAs and patents, and are truly national sui generis rights in any event, it may ultimately be that it is better not to change the current regime. If so, unitary patents will be no different than existing national or European patents in the way they give rise to SPCs. The alternative of a unitary SPC giving rights in all unitary patent countries, even if no MAs even existed in some of those countries, seems even less plausible, and would certainly require careful amendment to the SPC regulation. One simple question would be who would grant the unitary SPC? Using the EPO would surely be impossible, since the CJEU could not then exercise a supervisory jurisdiction: the current Spanish challenge to the unitary patent and language regulations would be greatly strengthened by such a move, and probably a further specific challenge to any amended SPC regulation would have a very high chance of success. Hence, this would leave the alternative of permitting national IPOs to grant unitary SPC rights. This also has its complications. Would there be some mutual recognition procedure? Would one IPO be designated to grant the unitary SPC?
Amendments to the already much criticised SPC regulation may ultimately be too difficult to contemplate. We will report again when further news is available.