10 May 2017

Unified Patent Court For Europe – the UK’s future remains unclear

Uncertainty in regards to the Unified Patent Court (UPC) continues. It is now unlikely the Court will be ready to go live in December 2017, and is more likely to start work in 2018.

Once the UK ratifies only Germany need ratify for the UPC to be in force, and until Easter 2017 everyone expected the UK would ratify in May/June followed shortly thereafter by Germany.  The German position is this – On February 10th 2017, the Bundesrat announced the bill authorising the ratification of the UPCA.  On April 27th German Bundestag approved the draft law 18/11238 enabling ratification of the ‘Protocol on Privileges and Immunities of the Unified Patent Court.’ The next step for the draft national law will be its passage before the German ‘Bundesrat.’ Approval by that body is expected to occur on May 12th 2017.  It is unclear if Germany might delay the final step of ratification in light of the UK hiatus we discuss below, but given they have Federal Elections in the autumn, it is expected Germany will formally ratify in June 2017.

Turning to the UK – At the end of March 2017 the UK Intellectual Property Office gave this statement:  “There has been some speculation this week about the UK’s timetable for ratification of the Agreement. …[W]e are fully on track to commence the provisional application period and ratify the UP Agreement according to the Preparatory Committee’s timetable (i.e. provisional application in May and court operational in December 2017). We expect the legislation on privileges and immunities to be ready to lay after Easter.” – Clearly they did not expect an election!

The consequence of the UK General Election is that the above mentioned legislation did not complete its passage through the UK Parliament before Parliament ended in April.  Consequently it is not ready to be sent for approval to the Scottish Parliament, nor for the last step of the UK ratifying the agreement.  Given the UK Parliament has only an expected one month in operation after the General Election in June before its summer recess, and less than a month of sitting in September/October it is now possible that the UK will delay the final steps of ratification to the autumn sittings in November/December 2017.

This delay is welcome if the UK Government now takes more time to plan its post Brexit strategy in terms of patents.  The problem if the UK ratifies without further agreement, is that the UK cannot tell the patent community whether the Unified Patent Court will have jurisdiction in the UK post 2019, nor whether the UK will host any part of the Court.  There is therefore debate about what happens to your Unitary Patent when the UK leaves the EU, does it leave you without protection in the UK?  As it stands; yes.  The General Election stopping the ratification process for the UK may lead to a more considered position, and it is hoped that in July the new UK Government will take time to think about its 2019 strategy before ratification is completed