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Current Status of the Unified Patent Court (UPC) Agreement since the UK’s Ratification
On 26 April 2018, it was confirmed that the UK had ratified the UPC agreement. This came after the welcome announcement, back in December 2016, that the UK Government was making the necessary preparations for ratification of the UPC agreement. The Minister for Intellectual Property, Sam Gyimah MP, said:
“Ratification of this important Agreement demonstrates that internationally, as well as at home, the UK is committed to strong intellectual property protections. This will help to foster innovation and creativity, bringing our modern and ambitious Industrial Strategy to life.”
In order for the UPC to start, at least 13 of the 25 EU countries, including France, the UK and Germany, which have signed the UPC agreement must ratify it. While at present the number of EU member states to ratify stands at 16, this number does not include Germany who must necessarily ratify the agreement prior to commencement.
The delay in Germany’s ratification stems from a challenge to the legitimacy before the German Federal Constitutional Court (FCC). The challenge was brought on a number of grounds (19/1180), including, amongst others, the independence of the judges yet to be appointed and an allegation of incompatibility with EU law. The challenge will likely be considered this year after being published on the list of cases at the FCC this February.
The initial consideration of this challenge will likely have one of two outcomes:
- That the challenge is dismissed, allowing Germany to ratify the agreement and the commencement of the UPC will commence four months after ratification.
- That either the FCC decides to hear the challenge or that further reference to the Court of Justice of the European Union (CJEU) is necessary. Both of which will further delay possible commencement of the UPC by several years.
There is an important distinction between the two possibilities for the UK, in particular in relation to Brexit. In the first scenario above, Germany may ratify the agreement this year and thus the UPC would come into being prior to the UK leaving the EU on 29 March 2019. Alternatively, Germany may opt to temporarily delay the ratification of the UPC agreement, or the FCC may follow the second scenario above, in which case the UK’s involvement would be subject to the ongoing Brexit negotiations.
It is likely that the UK Government will remain resolute in its wish to be part of the UPC due to the declaration to ratify and swift follow through of said declaration this April. Similarly, the Chair of the UPC Preparatory Committee, Sweden’s Alexander Ramsey, appeared confident of the UK’s involvement stating that, “Some of the wording of the agreement will have to be amended after the UK leaves the EU but I would very much like Britain to participate in the UPC in the long term. The whole of Europe will benefit from the system having the broadest possible geographical coverage.”
In short, the UK’s swift ratification prior to Brexit is good news if not least as a sign of the UK Government’s commitment to maintaining close Intellectual Property ties with the EU post-Brexit. However, there are still some questions regarding the UK’s involvement post Brexit and all eyes are currently on the German FCC as to when/if Germany will ratify the UPC and thus what the start date will be. 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.