On Wednesday this week, the Scottish Parliament approved the draft legislation required for the UPC Agreement to come into effect by conferring certain privileges and immunities on the Unified Patent Court and its representatives, judges, registrars and employees, to the extent that such matters are within the competence of the devolved administration in Edinburgh.
A corresponding order is awaiting approval by the UK-wide parliament in London and further news on this is awaited. The Government has been continuing to take steps towards ratification in spite of the ongoing Brexit process, maintaining the line that the Unified Patent Court Agreement is an international agreement rather than EU legislation, and at present there is nothing to indicate that the UK will not ratify the Agreement.
The most significant issue for the future of the UPC – and the UK’s place within it – is therefore the ongoing German constitutional case (as reported here). A final decision in this case is looking increasingly unlikely before Brexit takes place in March 2019. In that case, even if the German Constitutional Court ultimately dismisses the complaint, German ratification of the Agreement – which is necessary for it to come into force – will take place after the UK has left the European Union.
In such circumstances it seems questionable whether the UK’s pre-Brexit ratification of the Agreement would enable it to take part in a UPC with a post-Brexit start date, given that – as presently constituted – the Agreement is only open to EU members, despite technically being an international agreement rather than EU law per se. Up until now, discussion of the UK’s future in the UPC after Brexit has implicitly assumed that the UPC would be up and running, with the UK as a member, before March 2019.
Britain’s future membership of the UPC could therefore hinge crucially on whether the German Constitutional Court deems the constitutional challenge admissible or not. A decision on this point is expected in early 2018. If the Court decides the challenge is inadmissible, there will be (just) enough time to get the UPC up and running before Brexit in March 2019. If the Court decides the challenge is admissible, however, we enter uncharted territory.
It’s clear that 2018 is going to be an interesting year in more ways than one!