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UPC ratification update: Latvia ratifies, UK inches closer, Germany still on hold

  • United Kingdom
  • Intellectual property
  • Intellectual property - UPC

26-01-2018

Latvia

Latvia has completed the ratification formalities of the Unified Patent Court Agreement by depositing its instrument of ratification with the secretariat of the EU Council.

It becomes the 15th state to do so, out of the 25 signatories. Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, and Sweden have already ratified. UK, Germany, Slovenia, Slovakia, Greece, Cyprus, Hungary, Ireland, Romania, Czech Republic are still to ratify.

Latvia has decided, with Estonia, Lithuania and Sweden, to form a Nordic-Baltic regional division of the UPC. This will be based in Stockholm.

Latvia has not yet approved the Protocol on Provisional Application of the UPCA, nor signed the Protocol on Privileges and Immunities.

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

United Kingdom

The UK is expected to complete the process of adopting the national legislation required to implement the UPCA and the Protocol on Privileges and Immunities next month (February 2018), when the Privy Council is due to meet and approve the draft Order on Privileges & Immunities (a statutory instrument under the International Organisations Act 1968, which is intended to align UK law to the Protocol on Privileges and Immunities). The UK will then be in a position to deposit its instrument of ratification.

(The Order is UK wide, but touches on certain matters which are devolved to the Scottish Government, so a separate Order was required to be adopted by the Scottish Government. This has been done already. The International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 was laid before the Scottish Parliament in 2017 and was approved by the Privy Council on 14 December 2017.

It is not yet clear when the UK Government will actually deposit its instrument of ratification, following the expected approval by the Privy Council in February 2018. Various IP professional bodies in the UK published a joint letter in November 2017 urging the UK Government to do so promptly, avoiding any unnecessary delay. It is hoped that this will maximise the chances of the UPC starting operations before Brexit takes place on 19 March 2019, and that this in turn will maximise the chances for the UK continuing to participate following Brexit.

Germany

In Germany, an individual (Dr. Ingve Björn Stjerna, a European patent attorney) has filed a complaint with the Bundesverfassungsgericht (the Federal Constitutional Court (“FCC”)) challenging the compatibility of the UPCA with the German constitution. This has derailed the ratification process in Germany. Both houses of the German parliament approved ratification of the UPCA in March 2017 but, following the filing of the complaint, the President of the FCC has asked the German Federal President not to complete the ratification process, pending the court’s consideration of the complaint. The court file and its procedures are typically not open to the public at this stage, so a copy of the complaint is not publicly available. However, copies have been provided to various interested bodies which were invited to submit statements commenting on it. The deadline for those submissions passed in December 2017. A spokesman for the court has reported that seven interested parties submitted statements. These include: the German government, the European Patent Office, the European Patent Lawyers Association (EPLAW), the Deutsche Anwaltverein (a German bar association) and GRUR (the German Association for the Protection of Intellectual Property).

Court watchers and experts on German constitutional law consider that there is a fair chance that the FCC will dismiss the complaint summarily as inadmissible, and that a decision on admissibility can be expected by May 2018. If that were to transpire, the UPC could be open for business in Q1 2019. However, this is an optimistic scenario.

If the court accepts the complaint as admissible, a decision on the merits is unlikely before the end of 2018. If the court considers that matters of EU law are involved and a preliminary reference to the Court of Justice of the EU is required, a final decision is unlikely before 2020. In either case, the resulting delay may prove to be the final straw for this long-drawn out project and dash the hopes of the UK Government that Brexit will not exclude the UK from continued participation in the UPC.

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