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A Unitary Patent to be granted in 2017? Or perhaps not!


29th Nov 2016

The UK Government yesterday indicated that the UK will continue with the preparations for ratification of the Unified Patent Court Agreement, and that it will be working “to bring the UPC into operation as soon as possible”. However, there was the rider that “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”, and therefore it seems that there may be a way to go before the introduction of the Unitary Patent and Unified Patent Court (the Unitary Patent Package or “UPP”). The full press release can be found here.

Since the UK voted to leave the European Union earlier this year, one of the issues is what this would mean for the UPP.

For many years, the majority of countries of the European Union have been working towards a single patent right that extends across the countries of the EU (the Unitary Patent), and a single court with jurisdiction for patent litigation across Europe (the Unified Patent Court). Much has been done already to bring this about. Prior to the UK referendum in June 2016, it was expected that the first Unitary Patents would be granted and the first cases heard at the Unified Patent Court early in 2017.

The UK has been a key participant in the UPP. The UPC Agreement, which is an essential element of the package, currently requires ratification by UK before it can come into effect. Also, the UPC Agreement requires one of the seats of the central court to be based in London. Indeed, the building work on the London court is now largely complete. However, the UPP is very much a vehicle of the European Union, and with the UK voting to leave the EU, this has meant that the UK’s continued participation has been in doubt.

Many people have expressed views as to whether the UK could, would or should ratify the UPC Agreement before leaving the EU, and if so whether the UK would ratify the Agreement soon or would delay doing so until shortly before leaving the EU. Another option would be for the UPP to be put on hold until the UK has left the EU, in which case the UK would no longer need to ratify the UPC Agreement for this to proceed without the UK’s participation. A further option would be the renegotiation of the UPC Agreement – either to avoid the need for the UK’s participation, or to allow the UPP to extend to countries outside the EU – which could allow the UK to continue to be part of the system. Another option would be to give up on the unitary system for the time being.

In recent months, there has been little guidance as to how the UK would proceed. In October, Lord Stevenson of Balmacara asked the Government when the UK would ratify the UPC Agreement. In response, the Minister of State at the Department for Business, Energy and Industrial Strategy, Baroness Neville-Rolfe, answered yesterday that she could not “yet confirm whether the UK will ratify the agreement” but that the Government is “actively looking at options, considering the legal and political context”.

While yesterday’s statement says that the UK is intending to continue with the preparations for ratification, the statement stops short of confirming that the UK will ratify the Agreement, and gives no clear timetable for such ratification. At the press conference following the Competitiveness Council meeting, Commissioner Bienkowska of the Council indicated that the UK was ready to ratify the package and that she expected the UPP to enter into force in the first half of 2017. It remains to be seen whether the UK will ratify the UPC Agreement in the next few months so that this timescale can be achieved. In the meantime, there remains the opportunity for much debate on the future of the Unitary Patent and Unified Patent Court.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

Author
Steve Howe
Partner
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Would you like to know more? You can talk to Steve Howe who will be able to help. Call +44 (0)20 7539 4449

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