UK ratifies the Unified Patent Court Agreement
On World IP day last week, the UK Minister for Intellectual Property, Sam Gyimah MP, confirmed that the UK has ratified the Unified Patent Court Agreement (UPCA). The announcement from UKIPO can be read here. Simultaneously, the UK also deposited its formal instrument of ratification, making 16 countries in total having ratified the UPCA.
The news was welcomed by CIPA and received a positive reception from the UPC preparatory team. However, they also acknowledged that “There remains more work to do before the provisional application phase can commence – not least the outcome of the complaint against the UPCA in Germany which will influence the speed of moving to the final stage of the project.”
The complaint referred to is a case currently pending in the German Federal Constitutional Court (FCC) concerning the law passed by the German Parliament on the implementation of the UPCA, which has put German ratification is on hold until this is resolved. But technically, once Germany ratify and deposit their instrument of ratification the UP system can come into effect after a Provisional Application Phase. The Provisional Application Phase itself can come into force the day after France, Germany, the UK and 10 other states have signed (or confirmed that they have parliamentary approval to ratify) the UPCA and have consented to be bound by the PPA; to date 12 states have signed up.
Enough countries have now ratified the UPC agreement so that the UP and UPC systems can come into effect if Germany completes its own ratification procedures and sufficient approvals to the PPA are obtained, Brexit permitting.
What about Brexit ?
The UKIPO announcement calls the Agreement on the UPC an international treaty, explaining that the international court will have jurisdiction over patent disputes across its contracting states. While this is true, it does not address the fact that at present, participants to the Agreement must be members of the EU and that the Court will be subject to the Court of Justice of the European Union (CJEU). Nothing has been published in respect of the UPC and Brexit negotiations – the Draft Agreement for the Withdrawal of the United Kingdom from the European Union published in March this year set out a transitional period for certain IP rights – with the UK set to remain part of the European Union design and trade mark systems until the end of a transition period on 31 December 2020 – but was silent on the UP and UPC. Without such a transitional period the UK will no longer be an EU member state from 29 March 2019 and the status of the UK for the UP and UPC agreements is currently unclear. Completing ratification in Germany, and allowing for the provisional application phase all before 29 March 2019 seems very ambitious, but the UP and UPC has surprised us before and may do so again.