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UPC Update – February 2018

  • United Kingdom
  • Intellectual property - UPC


UK completes domestic legislative requirements to ratify, German constitutional complaint progresses, France ratifies the Protocol on Privileges and Immunities of the UPC


On 8 February 2018, the UK Privy Council made the The Unified Patent Court (Immunities and Privileges) Order 2018 (here), following approval in December 2017 of the draft text by the UK Parliament. This completes the domestic legislation necessary for the UK to comply with its obligations under the UPC Agreement, the Protocol on Provisional Application of the UPC Agreement and the Protocol on Privileges and Immunities of the UPC. The UK is therefore now in a position to ratify these three treaties. The timing of the ratification (which will be done by deposit of a formal letter of ratification) is now in the hands of the UK Government, ultimately the Prime Minister and Foreign Secretary. Various UK professional organisations in the field of patent law have urged the UK Government to proceed to ratification “without undue delay”.


Ratification by the UK will leave only German ratification outstanding before the UPC can enter into force. As we explained here, German ratification has been held up by a constitutional complaint against the UPC Agreement. The Bundesverfassungsgericht (German Constitutional Court) has announced on its website (see here item 11) that the complaint against the UPC has been allocated to the Second Senat of the BVG for decision, with Dr Huber as the reporting judge. The inclusion of the complaint in the annual preview 2018 indicates that the BVG intends to reach a decision during the current year. As explained here, the timing of the BVG decision could be critical in whether the UPC ever becomes a reality, and whether the UK participates in it. This announcement on the website is consistent with the court intending to take an early decision, so may give UPC supporters grounds for cautious optimism. However, the timing of the decision is still far from certain.


Meanwhile, the General Secretariat of the EU Council (the depositary for the UPC instruments of ratification) has reported here that France ratified the Protocol on Privileges and Immunities of the UPC on 14 February 2018. This protocol provides for typical privileges and immunities required for the proper operation of an international organisation and a court, such as the inviolability of the buildings of UPC, its records, judges and other personnel, free passage for litigants and their representatives and freedom from taxation. Ratification by Germany, Luxembourg and the UK will also be required before the protocol can enter into force. Those four countries are particularly significant in this context since the seat of the Central Division of the UPC will be in Paris, branches of the Central Division will be based in London and Munich, local divisions will be established in all three countries and the UPC Court of Appeal will be based in Luxembourg. The UK and Germany are expected to ratify at the same time that they ratify the UPC Agreement itself (the timing of which we discuss above). That just leaves ratification by Luxembourg, which is currently outstanding. Other states hosting local divisions are expected to ratify the protocol in due course.