At a meeting of the EU’s Competitiveness Council today, 28 November, the UK’s Intellectual Property Minister Lady Neville-Rolfe announced that the UK Government intends to ratify the Agreement on a Unified Patent Court.
This is highly significant, as the UK (along with France and Germany) is one of the three countries whose ratification of the treaty is essential for the UPC and Unitary Patent system to come into effect. Today’s announcement therefore ends months of uncertainty which have followed the shock result in the UK’s June referendum, in which a majority of voters opted to end the UK’s EU membership. In view of the fact that membership of the UPC and Unitary Patent entails recognising the supremacy of a supranational court with the power to refer questions of law to the Court of Justice of the European Union, UK ratification of the Unitary Patent Package seemed to be politically unthinkable. Today’s announcement turns that perception inside-out.
As the necessary legislation to implement the UPC Agreement into UK law already received Parliamentary approval prior to the Referendum, only the formalities of Royal Assent and deposition of the UK’s instrument of ratification are now necessary to complete the process. In principle the UK could therefore proceed speedily with ratification whenever it chooses to do so. According to the text of the official announcement released by the UK Intellectual Property Office this afternoon, the UK intends to work towards bringing the UPC agreement into force “as soon as possible”.
A total of 11 countries, including France, have now ratified the Agreement, with at least three more on the way besides the UK and Germany. This means that, subject to UK ratification taking place in the near future, all eyes will turn to Germany as the country which will determine the starting date for the biggest shake-up of the European patent system in decades. Assuming that Germany does not delay with its own ratification, the UPC and Unitary Patent could potentially become reality by Spring or Summer 2017, only a little behind schedule.
Now that one set of uncertainties has been dispelled, another takes its place. Will the UK be able to remain a member of the system after “Brexit” takes place, probably in mid-2019? Will the UPC’s Central Division retain its chemistry and life sciences branch in London? What will the “Brexit camp” in British politics make of this announcement, and will they try to prevent ratification, or at least frustrate any moves towards the UK remaining a member of this system after Brexit? Answers to all these questions – and hopefully more – will no doubt emerge over the coming weeks and months, and we at Dehns will keep you updated with important developments as they happen.