On World Intellectual Property Day (26 April 2018) the UK IP Minister Sam Gyimah announced the ratification of the Unified Patent Court (UPC) Agreement at the House of Commons. It seems that the UK Government has listened to the many representative groups in the Patent arena who suggested that being part of the new system prior to Brexit was preferable to trying to join it post-Brexit. Now we need to wait to see if the German constitutional challenges can be resolved before the end of March next year.
The move demonstrates the UK government’s determination to remain engaged with European regulatory activity in science and technology after Brexit. Although London is losing the European Medicines Agency, which is relocating to Amsterdam, it will gain one of the most important divisions of the new UPC, which will rule on patent disputes in pharmaceuticals and life sciences.
The UK, along with France and Germany, is one of three signatory States which must ratify before the Agreement can come into force. France ratified long ago (2014), so German ratification is all that is now needed. Ratification by Germany has been held up by challenges to the legislation which was passed to allow Germany to ratify in both the Bundestag and the German Constitutional Court. Neither has yet been resolved.
15 other countries have already ratified the UPC Agreement. Once Germany ratifies, the Agreement will come into force on the first day of the fourth month after the month of that last required ratification. Assuming the constitutional challenges fail, German ratification will likely be timed to coordinate with the new UPC being ready to operate. Once in effect, the UPC court will operate across all current EU States except Croatia, Poland and Spain which have not signed up to the Agreement. A European patent with unitary effect (otherwise known as a unitary patent) will be available, covering all the participating States, once the UPC is established. Unitary patents will be enforced through the UPC which will also have jurisdiction over European patents which have not been opted out of the new system.
The patent system will enable inventors to defend their rights with a single patent and a single legal system across the EU. It is designed to be less expensive and time-consuming than the present procedure, in which patents have to be registered and enforced in individual countries. But patents will continue to be examined and granted by the European Patent Office, a non-EU international organisation in Munich.
In a statement, the UK government confirmed that there remains uncertainty over the UK's participation in the new UPC system post-Brexit, despite its ratification of the UPC Agreement, as it will be subject to negotiations with European partner as they live the EU.