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UK Government to ratify the Unified Patent Court (UPC) Agreement
The UK government announced this week that it has decided to continue preparations to ratify the UPC agreement. On Monday, the UK Minister of State for Intellectual Property, Baroness Neville Rolfe said:
“The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe to develop this option.”
“As the Prime Minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.”
“But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.”
Following the announcement, the UK will continue with preparations for ratification over the coming months. It will be working to bring the UPC into operation as soon as possible. The UPC agreement is currently only open to EU member states, and needs to be ratified by the UK and Germany before it can come into force (France already having ratified). Thus, the UK government’s announcement puts preparations for the UPC back on track and paves the way for the Unitary Patent to come into force.
However, there are still many questions that need to be answered. These include whether and how the UPC and Unitary Patent could still cover the UK when and if the UK leaves the EU. Some legal opinion indicates that it should be legally possible for the UK to remain part of the UPC even after leaving the EU, so long as the UK can accept some supremacy of EU law with respect to patent matters. However, there will need to be stiff negotiation and political will on all sides to put this into effect. Some commentators question whether Germany will delay its own ratification until it is clearer how the UPC will work after the UK leaves the EU.
In short, the UK government’s announcement is good news, although there is still some uncertainty about when the UPC will come into force and whether it will cover the UK after Brexit. For the time being, it is important to remember that the UPC and unitary patent will have no effect on the existing system of European patents obtained at the EPO. However, applicants should start to consider again their strategies for opting out their European patents from the UPC when it does come into effect.
If you have any questions on this topic, please contact Andy Cloughley at firstname.lastname@example.org.