UK to ratify UPC Agreement regardless of Brexit
28 November 2016
At the Competitiveness Council meeting today the UK Government confirmed that it is proceeding with preparations to ratify the Unified Patent Court Agreement.
The UK’s announcement will surprise many given the current political climate and the legal uncertainties surrounding future involvement of the UK in the project. However, there have been a number of legal opinions addressing those uncertainties and indicating ways in which the UK could continue to participate in the UPC regardless of its pending exit from the European Union. It is also understood that there is widespread support among other EU member states and businesses (UK, European and international) for continued participation by the UK.
The press release available on the HM Government website refers to the UK’s intention to maintain an active role in the EU until it leaves, and suggests that the UK Government sees ratification as an indicator of the UK’s desire to maintain a close cooperative relationship with the EU post Brexit, including free trade. Interestingly, the press release notes that the UPC is not an EU institution but an international patent court, a potentially important distinction from the political perspective.
The press release also indicates that the UK will continue with preparations for ratification “over the coming months” without giving any indication on actual timing. UK and German ratification are required as necessary conditions for commencement of the UPC Agreement. The UPC (and unitary patent) is therefore back on track to commence during 2017. We understand that for practical reasons, formal commencement is unlikely to be before Q3 or Q4 2017, with a sunrise period beginning six months or so beforehand.
Inevitably, debate will continue as to how the UK can continue to participate in the UPC once it leaves the EU, including what legal steps may be necessary to enable that to happen. D Young & Co will provide a more detailed commentary on this decision shortly and will provide further updates on progress towards commencement of the UPC, and the availability of the unitary patent, as more information becomes available.
Our advice to businesses in the short term is that it will be prudent to revive their assessment of the opt-out from the UPC, for their conventional European patents, now that there is a real prospect of the UPC commencing in 2017.
For more information, please contact your usual D Young & Co representative or email email@example.com.