30 April 2018
It is well known now that for the Unified Patent Court (UPC) and Unitary Patent to come into force, the ratification of the UPC Agreement by 13 Member States must be completed by deposit with the Council of the European Union.
Three of these are mandatory – France, Germany and the UK – but so far, only France has ratified. It is less well known that in addition to these ratifications, further instruments called the Protocol on Provisional Application (PPA) and the Protocol on Privileges and Immunities (PPI) must also receive the necessary number of ratifications and signatures and these are not all in place either.
However, the delays to the ratifications of the UK and Germany are what currently pose the greatest obstacle to the start of the UPC and Unitary Patent. What is the current status of these?
After a lengthy delay in the aftermath of the decision to leave the EU, the UK Government decided to press on with ratification of the UPC and Unitary Patent. Legislating to implement the Protocol on Privileges and Immunities was the last step that needed to be taken before the UK ratification could be deposited.
This legislation was provided in two parts: one part dealing with Scotland (the Scottish Order) and the other part, the Westminster Order, dealing with the rest of the UK. The Scottish Order was agreed at Privy Council in December 2017 and the Westminster Order was approved by Privy Council in February 2018. These Orders are now with the Foreign Office for signature by the Foreign Secretary, Boris Johnson MP. Once signed, they will be ready for deposit in Brussels.
There is currently no date set for this deposit but it is widely expected that it will happen in the spring of 2018. Although ratification by the UK does not ensure its future participation in the UPC and Unitary Patent after Brexit (which is a matter of negotiation with the remaining 27 EU Member States), it would then leave the onus on Germany to provide the final mandatory ratification of the UPC Agreement.
In Germany, close attention is being given to the complaint filed against ratification of the UPC Agreement before the Federal Constitutional Court (FCC) in March 2017. The filing of this complaint resulted in a request to the German President's office to stay signature of the legislation necessary to ratify the UPC in Germany.
A decision by the FCC on whether to admit the complaint in acceptance procedure is also expected later in the spring of 2018. If the complaint is dismissed, German ratification can take place and, providing the UK ratification is also deposited, and the approvals of the PPA and PPI are in place, the UPC can proceed.
If the complaint is admitted, however, the future of the UPC will depend on the decision of the FCC on the merits of the complaint. This will be a longer process and there would be no guarantee that the FCC would find in favour of ratification proceeding.
The future of the UPC and Unitary Patent therefore hangs in the balance, and developments expected soon in the UK and Germany will be crucial.