UP & UPC - latest news April 2018
Our latest report on unitary patent and Unified Patent Court developments and a summary of the status quo, including UK ratification of the UPC Agreement (UPCA).
Progress on Ratification of the UPC Agreement (UPCA)
So far, 16 countries have ratified. The UK ratified the Unified Patent Court Agreement on 26 April 2018. The current status of ratification by Germany, which is necessary before the system can start, is discussed below.
UK ratifies UPC Agreement
On 26 April 2018 (World IP Day) the UK Minister for IP, Mr Sam Gyimah MP, announced that the UK has taken the positive step to ratify the Unified Patent Court Agreement (UPCA).Read more
UK and the UPC post Brexit
It seems to be generally desired by industry and the other participating countries that the UK should continue in the project post Brexit, and indeed with that in mind several organisations have lobbied the UK Government to proceed with ratification of the UPCA to allow this possibility to remain. Opinions have been published to the effect that post Brexit participation by the UK, in the UPC at least, may be possible (at least legally) but that certain steps will be necessary for this to happen. As things stand, neither the UK Government nor the EU negotiators from the Council, Commission or Parliament, have given any indication as to whether this will be addressed in the pending Brexit negotiations. We are waiting for signs that it will be and as and when we see these, we will report.
Progress on the Protocol on Provisional Application (PPA)
Readers will recall that the UPC envisages 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 pre-commencement opt-outs during a sunrise period. This requires countries to sign up to the PPA and agree to be bound by it. As things stand, three further signatories are required, including Germany (the UK is already bound by the PPA, as is France). This was the situation in October 2017.
UPCA and PPA status in Germany
As readers know, there is a constitutional complaint pending before the Federal Constitutional Court (FCC) in Germany, challenging the local implementing legislation’s compatibility with the German constitution. Several third parties were invited to, and did, comment on the complaint, the last submissions being due at the end of January. The complaint has since 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. It also does not necessarily mean the complaint has even been admitted by the FCC.
We do not expect a rapid decision in Germany although it is possible we may hear something in the April-June 2018 time frame. Until the complaint is either determined not to be admissible or is in fact dismissed by the FCC, German signature of the PPA will not happen, and nor will its ratification of the UPCA.
Timetable to commencement
With great 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 UPC and UP 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 (which means as early as possible in 2018), then it is possible that the UPC and UP could be up and running before Brexit in March 2019. However, time is very short given the practical steps still required in any event, and the seeming necessity to address the impact on the system of the UK’s departure from the EU, one way or the other.
We continue to monitor the situation and will report on any significant changes as soon as we know them.