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UK withdraws its ratification of the Unified Patent Court

In a move which appears to run counter to the German Government’s intention to bring the Unified Patent Court (UPC) system into effect, the UK Government announced, on Monday 20 July 2020, by way of diplomatic memorandum, that the UK has withdrawn its ratification of the UPC Agreement (UPCA) with immediate effect.

A statement by Amanda Solloway, Under Secretary of State in the UK Parliament, indicated that since the UK has withdrawn from the European Union, the UK no longer wishes to be a party to the Unified Patent Court systems, because participating would mean that the UK would be bound by decisions by the CJEU and a court which applies EU law.

The reason given for the withdrawal now was that, although not yet in force, the UK’s withdrawal from the UPC will ensure clarity regarding the UK’s status and to facilitate the orderly entry into force of the UPC for other states, without the UK’s participation.

The UK’s position contrasts with attempts by the German Government to bring the UPC into effect by the Bundestag voting to ratify the UPC, which may happen later in 2020.

According to its decision in March 2020, the German Federal Constitutional Court indicated that although member states of the UPC have to be member states of the European Union, ratification by Germany would mean that the UPC could come into force because the UK had ratified the UPC.

Ratification by Germany would mean that the conditions required for the UPC to come into effect would be satisfied, regardless of the UK’s subsequent actions.

Although the relevant article of the UPC (Article 89 of EU Regulation No 1257/2012) does not explicitly mention the UK, the condition for the UPC coming into effect requires that at least thirteen states ratify the UPC, including three member states in which the highest number of European patents had effect in 2012, which were the UK, Germany and France.

The withdrawal now of the UK appears to cast doubt on whether the current form of the UPC can come into force without amendment of the UPC Agreement.

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