UK ratifies the UPC Agreement - what does this mean for the UPC? (Sssh - don't mention Brexit…)

4 minute read
27 April 2018

On 26 April 2018 the UK completed its ratification of the Unified Patent Court (UPC) Agreement by depositing its instrument of ratification with the European Council.

Noting that the UK is "overflowing with innovative businesses" that will benefit significantly from the new court, Intellectual Property Minister, 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."

The UPC Agreement establishes a new Unified Patent Court and unitary patent system for participating EU countries. The minimum number of ratifications (13) has been achieved and passed, but the UPC Agreement will only come into force once each of France, Germany and the UK has completed ratification. France and the UK have both now done so.

In Germany, however, ratification has been delayed by a challenge filed in the Federal Constitutional Court in 2017. There will be a procedural decision this year, but it is not known whether the complaint will receive a full hearing (which would probably be in 2019) or be dismissed. Before the challenge arose, Germany was poised to ratify and so could be expected to proceed if the challenge is rejected. However, Germany may choose to time its ratification to ensure that the new court becomes operational once post-Brexit arrangements are clearer.

If Germany goes ahead and the UPC comes into operation before Brexit the current Brexit transition period (29 March 2019 to 31 December 2020) would seem to facilitate the UK's continued involvement in the new system at least until the end of 2020. This would give breathing space for more permanent solutions to be reached regarding the legal conundrums presented by Brexit for the new system. The UK's future relationship with the Unified Patent Court therefore remains a matter of negotiation with European partners.

Ardent Brexiteers will be dismayed by this turn of events given it binds the UK to the EU during the transition period rather than moving it away and involves participation in a new patent court system with pan-European jurisdiction. However, those in favour of streamlined protection and enforcement of intellectual property (IP) protecting innovation and business are likely to be enthused. The UK Government's decision to ratify the UPC Agreement signals its support for the new system and its determination to keep the UK at the forefront of international progress in IP.

The UK Intellectual Property Office's (UKIPO) press release announcing the ratification is available here.

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