Date: 14 May 2018
By Hugh Dunlop
The UK has ratified the Unified Patent Court Agreement to pave the way for the new Unitary Patent and the new court. This is a major step forward for the system, which was first agreed in February 2013 but was put in doubt following the Brexit referendum of June 2016. In our Autumn 2016 edition of ipNews we explained that there need not necessarily be any exit from the UPC upon Britain’s exit from the EU. With the UK leaving the EU on 29 March 2019, ratification now gives the UK the opportunity to get the system started and negotiate continued participation later.
On 26 April the UK Minister for IP, Sam Gyimah MP, announced that the UK government has ratified the Unified Patent Court Agreement. The instrument of ratification was signed by Foreign Secretary, Boris Johnson, and deposited with the General Secretariat of the EU Council.
Ratification by the UK is not the last hurdle for the UPC and the Unitary Patent system. Ratification by Germany is required, which is on hold pending resolution of a complaint before the German Federal Constitutional Court, scheduled on the Court’s diary to be heard at some indeterminate time in 2018. (It is one of 36 cases scheduled this year before the Court’s Second Senate.)
The system begins on the first day of the fourth month following ratification by Germany (and the provisional application phase begins earlier). All eyes are now on the timing and outcome of the hearing by the German Federal Constitutional Court and on the transitional Brexit deal for whether the system can get started in its present form.