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No guarantees post-Brexit but UK to push ahead with ratification of UPC

Despite having no guarantees about what will happen after the UK leaves the EU, the UK Government announced that it is proceeding with preparations to ratify the Unified Patent Court Agreement (UPC Agreement) at the EU Competitiveness Council Meeting on 28 November 2016.

This is good news for the success of the unitary patent system project; without the UK the system was likely to be less attractive to industry. However, it is by no means certain that the UK will be able to remain in the club in the longer term and this in some way diminishes the positive impact for patent holders. The remaining uncertainty may mean that organisations feel that it is better to sit on the side-lines until the UK’s longer term position is clarified.

UK ratification – the timeline

On 19 February 2013 the UK Government signed the UPC Agreement, an intergovernmental agreement, along with 25 other EU member states to create a Unified Patent Court. The Unified Patent Court will begin operations three months after 13 member states including the UK, France and Germany have ratified the Agreement

To ratify the UPC Agreement, the UK must pass legislation to give recognition to the judicial framework which will underpin the new unitary patent system.

The Intellectual Property Act 2014 contained provisions that allow the changes necessary to implement the Unitary Patent and Unified Patent Court into UK law to be made by secondary legislation. Both UK Houses of Parliament approved the draft of one of the statutory instruments (SI) needed for the UK to ratify the UPC Agreement in March 2016 – The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016. This SI will amend the Patents Act 1977.

In addition, additional secondary legislation will be needed to implement the Protocol on the Privileges and Immunities into the national laws of the UK. We understand that the UK government have prepared the necessary draft statutory instrument.

The UK legislative process needed for ratification is unlikely to be finalised until spring next year. Germany also has to ratify and is also expected to do so early next year.  If this timetable is accurate then the system could be operational by early summer.  However, a start date of late autumn/winter 2017 is probably more realistic.

UK Government press release  

Preparatory Committee statement

Outlaw comment

1 Dec 2019