On Monday the UK began the final legislative steps that will allow it to ratify the Unified Patent Court Agreement (UPCA). Barring further political upsets, the UK should therefore be in a position to ratify the UPCA at some point in autumn 2017.
The major source of uncertainty is now therefore likely to be the challenge which has been brought before the German Federal Constitutional Court (Bundesverfassungsgericht). Although speculation is rife, nobody at present appears to have any real idea of the substance or merits of the challenge, nor of when the Court is likely to reach a decision.
On Tuesday this week the Chairman of the Preparatory Committee for the Unified Patent Court, Alexander Ramsay, released a statement which seems to indicate that even he, as well as the German government and parliament, appear to be in the dark just as much as the rest of us.
Ramsay notes that he is “hopeful” that the situation will be resolved “quickly” so that the sunrise period (in which opt-outs from the Court’s jurisdiction can be registered pre-emptively) can begin in “early 2018” but otherwise the statement contains little of substance. Assuming that “early 2018” could extend as far as March, this could amount to a tacit admission that the UPC is unlikely to enter into effect before summer 2018 (assuming a 3-month sunrise period).
The German legal profession seems none the wiser as to when a decision in the constitutional case might be expected. Word is that the case has been expedited, but estimates of the timescale for a decision vary wildly and I have seen estimates as low as 4 months and as long as 12 months. Even if the constitutional complaint is ultimately unsuccessful, it could therefore be a while before Germany is ready to ratify the UPCA.
These ongoing delays aren’t all bad news, however, as the additional available time allows other preparations to continue in the meantime. In recent days Estonia completed passage of the legislation needed for ratification of the UPCA. Together with Latvia, Lithuania and Sweden, Estonia will take part in a “Nordic/Baltic” regional division of the court and all four of those countries have now either ratified, or will soon be in a position to ratify, the treaty. Slovenia also signed the Protocol on Privileges and Immunities this week, which is good news as part of the UPC’s Mediation and Arbitration Centre is destined to be located there.
With Estonia and Slovenia joining the ranks of countries which have ratified, or are ready to ratify, the UPCA, this means that the Court could eventually enter into force with at least 17 out of a potential 25 countries taking part, significantly above the minimum threshold of 13 which is specified in the Agreement, which may help to improve the attractiveness of the UPC in its early stages as it will cover a majority of the EU, including its biggest economic powers.
A further silver lining to the ongoing delays means that the Brexit talks should be reasonably well-advanced by the time Germany is ready to ratify the UPCA. This may help to give some much-needed clarity to the question of whether the UK is able – and willing – to remain a member of the UPC system after Brexit. With the clock ticking until the UK’s “deal or no deal” exit from the EU in March 2019, it is to be hoped that a political and legal consensus on this crucial issue will emerge sooner rather than later.