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Next steps for the UPC following UK ratification

The UK Government announced on 26 April 2018 that it had ratified the Unified Patent Court (UPC) Agreement. The UK becomes the 16th member state to ratify the Agreement.

When it comes into effect the new system will come in two parts: a unitary patent (UP) and the Unified Patent Court (UPC). The unitary patent will be a single patent right that will be effective in up to 25 member states of the EU (possibly more over time). The unitary patent will be enforceable in a new international court, the UPC. The UPC will also have jurisdiction over traditional (conventional) European patents, subject to an important opt-out.

CIPA welcomes UK ratification

The Chartered Institute of Patent Attorneys (CIPA) President Stephen Jones said:

CIPA welcomes the UK’s ratification of the Unified Patent Court Agreement. The UPC has the potential to benefit businesses by streamlining the process of enforcing patents. CIPA believes that the UPC will be a better system with UK involvement. The UK has well established regimes for enforcement of patents and judges who are respected in Europe and worldwide for their understanding of patent law. The UK has been extensively involved in the discussions leading to the establishment of the UPC and CIPA has been pleased to play a part in that. The UPC Agreement is not an EU instrument so it is an initiative in which the UK is able to play a full part despite Brexit. It is a good example of international cooperation which is consistent with the UK moving forward as an innovation led economy.

When is the new system likely to come into effect?

Only ratification by Germany is now required before the UPC and unitary patent system can come into effect. France – the other mandatory ratification for the system to start - has already ratified.

As previously reported, there is a constitutional complaint pending before the Federal Constitutional Court (FCC) in Germany, challenging its participation in the UPC. The complaint has been listed as one of the cases the FCC intends to resolve in 2018 but we understand this does not necessarily mean that it will in fact do so. We do not expect a rapid decision in Germany although it is possible we may hear something mid 2018.

As and when barriers to German ratification are removed (ie, if the FCC dismisses the complaint) and Germany indicates formally that it is in a position to ratify, there will be a provisional application period, intended to last between six to eight months prior to actual commencement of the UPC, during which the UPC will come into existence and essential pre-commencement administrative steps can be taken. These include recruiting judges and filing by users of pre-commencement opt-outs during a sunrise period.

With uncertainty surrounding the position in Germany and the impact of the post-Brexit status of the UK, it is impossible to make any predictions as to when the UP and UPC might be up and running. If the complaint before the FCC is dismissed in enough time to allow the system to begin before the UK leaves the EU, then it is possible that the UP and UPC could be up and running before Brexit in March 2019. However, time is very short to carry out all that will be necessary to meet the March 2019 deadline, both in terms of preparing for the UPC itself and in assessing the impact of Brexit upon it.

How do I find out more?

We continue to monitor the situation and will report on any significant changes as soon as we know them.

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