Posted on 29/11/2016

UK to ratify the Unified Patent Court Agreement

Ratification is a necessary step towards the creation of the Unified Patent Court.

It was confirmed by a government spokesperson yesterday afternoon that the UK will “proceed with preparations” to ratify the Unified Patent Court Agreement (UPCA).

Ratification of the UPCA is needed to realise the Unitary Patent and Unified Patent Court (UPC). Under these new systems, businesses will be able to protect and enforce their patent rights across the EU in a more streamlined way – with a single, pan-EU patent enforced through a single, pan-EU patent court (although not all EU countries are party to both strands of the UPCA).

This contrasts to the current European patent process, whereby inventors must maintain individual national patents in each EU country, after grant of a European patent, and then enforce their patents in each country’s national patent court.

The government announcement goes against the expectations of many in the IP profession, after the vote for Brexit.

Eleven countries have already ratified the agreement and the UK had been expected to ratify in the summer, followed by Germany at the end of this year. However the UK’s vote to leave the European Union in June delayed ratification and prompted many to think that the UK would pull out of the agreement and undo many years of work.

In a statement, the UK Minister of State for Intellectual Property, Baroness Neville Rolfe said that “For as long as we are members of the EU, the UK will continue to play a full and active role. But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.”

It was also claimed in her statement that: “The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.” Whether this statement is correct remains to be seen, as Art. 20 of the UPC Agreement explicitly says that the UPC shall apply European Union law in its entirety and shall respect its primacy, and Art. 21 adds that decisions of the Court of Justice of the European Union shall be binding on the UPC.

Yesterday’s announcement may put the UPC back on track and it may be up and running in 2017, assuming that the “preparations” take place and ratification happens swiftly. It also confirms the plans for a London branch of the Unified Patent Court which will rule on patent disputes in chemistry, materials, pharmaceuticals and life sciences (which includes many areas of our sector expertise such as food and drink, advanced materials, biotech and healthcare).

We will keep you updated with any further announcements. If you have any questions, please get in touch.

Wilson Gunn