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Unified Patent Court Update (April 2018): A major step forward

  • United Kingdom
  • Commercial and IT
  • Intellectual property - UPC

03-05-2018

UK ratification

The UK has completed the ratification formalities of the Unified Patent Court Agreement (“UPCA”) by depositing its instrument of ratification with the secretariat of the EU Council on 26 April 2018.

It becomes the 16th state to do so, out of the 25 signatories.

Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, and Sweden have already ratified. Germany, Slovenia, Slovakia, Greece, Cyprus, Hungary, Ireland, Romania, Czech Republic are still to ratify.

The UK also deposited its instrument of ratification of the Protocol on Privileges and Immunities on the same day.

There has been some concern amongst UPC observers over recent months that the UK government would delay UPC ratification, using it as a bargaining chip in the wider Brexit negotiations which are underway, or at least pending receipt of assurances from the other contracting states that the UK will be able to continue to participate in the UPC project following Brexit.

However, the UK government appears instead to have contented itself (see the official press release here)

with:

- emphasising repeatedly in the official press release that the UPC is an international court (ie not an EU Court), no doubt with an eye to potential criticism from Brexit supporters; and

- indicating that the “unique nature” of the UPC means that the UK’s future participation will be subject to negotiation with European partners as we leave the EU (i.e. it will not necessarily come to an end as the UK leaves the EU).

The official press statement concludes that “Ratification of the UPCA will keep the UK at the forefront of influencing the international system”. This final statement indicates clearly the UK Government’s aim in ratifying promptly. However, amidst current concerns that Brexit is undermining the UK’s influence internationally, only time will tell whether it will come to be seen as wishful thinking.

So when will the Unified Patent Court open for business?

The start of the Unitary Patent system depends on ratification of the UPCA by 13 contracting states, including France, Germany and the United Kingdom.

France and the UK have now completed ratification, and the minimum number of ratifications (13) has been achieved. So only one further step is needed before the Unified Patent Court can open for business: ratification by Germany.

All eyes now turn to Germany and, specifically to the Bundesverfassungsgericht (the Federal Constitutional Court (“FCC”)) and Dr. Ingve Björn Stjerna (a European patent attorney). As we discussed in our February 2018 update here, German ratification is on hold pending resolution of a constitutional complaint by Dr Stjerna. The fate of the Unified Patent Court project, more than 45 years after it was first proposed, therefore now lies in the hands of Dr Sterjna and the FCC.

 

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