17 August, 2017

Unitary Patent and Unified Patent Court – An Update

Unitary Patent and Unified Patent Court – An Update

In June last year we reported that the proposed new Unitary Patent and Unified Patent Court (UPC) of the European Union (EU) were expected to be delayed following the “Brexit” vote by the United Kingdom (UK) to leave the EU in a referendum held on 23 June 2016.

The Unitary Patent was established by EU regulation no. 1257/2012.  For the enforcement of the Unitary Patent, however, it is necessary for the Agreement on establishment of the Unified Patent Court (UPC) to enter into force.  For this to happen, the UPC Agreement must be ratified by at least 13 of the 25 EU signatory states, and these must include the UK, France, and Germany.

Current situation

As at August 2017, eleven of the signatory states, including France, had ratified the UPC Agreement so that its entry into force now depends solely upon ratification by Germany and the UK.

Many EU member states were relying on the UK to ratify the UPC Agreement, as these countries have been working towards such an agreement for decades.  However the intention of the UK to leave the EU following the “Brexit” vote and the apparent disinclination of the UK to be bound by EU Courts (a requirement under the UPC Agreement in which the European Court of Justice (ECJ) is the highest authority) suggested that ratification by the UK may be both politically and legally problematic.

Interestingly, however, despite the “Brexit” vote, the UK announced in November last year that it intended to ratify the UPC Agreement.

This year Germany was also ready to ratify the agreement. Both the German parliament and the German Federal Council had agreed and passed legislation on the UPC Agreement so that only signature by the German President (usually a mere formality) was necessary for ratification.  Upon a request from the German Constitutional Court, however, the President has withheld his signature and delayed ratification of the agreement.

The reason for this is that a number of complaints regarding establishment of the Unified Patent Court are currently pending before the German Constitutional Court.  Because these complaints are not considered by the Court to be “entirely without merit”, the Court requested that ratification of the UPC Agreement be stayed until the Court has ruled on the complaints.

Also, following the UK election in June this year in which the UK Conservatives lost their majority in the House of Commons, it is currently unclear when ratification of the UPC Agreement by the UK may take place.

Ratification of UPC still pending

In short, therefore, the ratification of the UPC Agreement by Germany and the UK – a requirement for the commencement of the Unitary Patent system - is still pending.

Optimists consider that the Unitary Patent system may still commence by mid-2018. Others say the Unitary Patent system will not start before 2019.  In view of the continuing economic and political uncertainty associated with the UK leaving the EU, some question whether the Unitary Patent system will ever enter into force. Whatever the case, we will keep you informed of developments!


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