There has been yet another set-back on the road to the introduction of the European Unitary Patent and Unified Patent Court (UPC). Not only were there delays resulting from the Parliamentary processes around the UK general election held on June 8th but it has emerged that there may be a more serious hurdle to be overcome, this time coming from Germany. In June, the German Federal Constitutional Court asked the German Federal President not to execute the national legal instruments necessary for Germany’s ratification of the Unified Patent Court Agreement and the ancillary protocols to this Agreement. In my opinion, this is going to cause delays of at least several months in the ratification process by Germany. Therefore, even if the UK continues with the ratification process in the Autumn as is now expected, the actual start date of the Unitary Patent and UPC system would still be delayed by this new obstacle on the road to ratification by Germany.
On Monday, July 17, the motion on the Unified Patent Court (Immunities and Privileges) Order 2017, the final legislative step in the UK’s ratification process, was not debated in the House of Commons as had been scheduled. According to a spokesperson from the UK Intellectual Property Office (UKIPO) a new date for the debate will be scheduled “after the recess/in due course”. “The motion was not moved as other urgent parliamentary business took priority,” the spokesperson has said. Separate legislation will be laid in the Scottish parliament after the summer recess, which ends on September 5, 2017.
Once the The Immunities and Privileges Order has been passed, the UK will be able to formally ratify the UPC Agreement.
“We are working with the UPC preparatory committee to bring the UPC into operation as soon as possible,” said the UKIPO’s spokesperson. “For as long as we are members of the EU, the UK will continue to play a full and active role and continue to fulfil its obligations. As such, we will aim to deliver on our commitment to ratify the UPC, fulfilling our role as a constructive partner.”
The chief Brexit negotiator for the European Union, Michel Barnier, has implied that the arm of the Unified Patent Court (UPC) set to reside in London may be up for reconsideration by the EU.
Mr Barnier commented recently that “infrastructures linked to the status of being an EU member’ will have to be displaced. ‘We are going to look at all these infrastructures, including the one related to the European unitary patent”. This is hardly surprising, of course, and I remember that this came up in our own conversation when we met. The UKIPO continues to emphasise that, despite being linked to the EU, the UPC is “not an EU institution”, and instead is an “international Court”. This reflects the optimistic attitude that the UK can still be a part of the UPC after the UK leaves the EU, currently to occur at end of March 2019.