In a move that advances the establishment of the European Unified Patent Court (UPC), Luxembourg has become the latest signatory to ratify the UPC Agreement. The country deposited its instrument of ratification with the Council of the European Union on Friday, 22 May 2015.
This ratification makes Luxembourg the seventh signatory state to consent to the Agreement, which now requires just six more signatory states, including Germany and the UK, to allow the Agreement to enter into force. Luxembourg’s consensus rapidly follows the decision of the Court of Justice of the European Union (CJEU) to dismiss an action by Spain, which attempted to have the Agreement annulled on the basis that it is in conflict with EU law. Hence, Luxembourg has removed a material hurdle to the development of a European unitary patent system. The decision of the CJEU has also motivated Italy’s Ministry of Economic Development to place accession to the EU Patent Package as a high priority for the Italian government.
Together it would appear that the UPC is back on course – however, there are some issues that might still impact the new Court.
Ireland looks unlikely to hold the constitutional referendum required to ratify the Agreement until the middle of 2016. However, Ireland is not a compulsory signatory state required for the Agreement to commence, and the postponement of the referendum will likely manifest as a delay rather than an impasse, particularly given the Irish Government’s positive reception to the establishment of both the UPC and of an Irish local division of the Court.
The UK might actually prove to be the greatest impediment to the UPC by deciding to hold a referendum on whether it should remain an EU Member State. The Conservative Party, which was re-elected as the majority party in the House of Commons in the 2015 UK General Election, has planned hold a straight in-out referendum on UK membership to the EU by the end of 2017. The EU Referendum Bill passed second reading on Tuesday, 9 June 2015, and consideration of the Bill by a Committee of the House of Commons has been provisionally scheduled for 16-18 June, 2015.
If the referendum were to pass and the UK was to leave the EU, the UPC could still be established by the Netherlands taking the place of the UK as the third compulsory signatory state (together with Germany and France) in which the highest number of European Patents had effect in the year preceding signature of the Agreement. However, a unitary patent system excluding the second largest economy in the EU represents a less attractive alternative to patent applicants and proprietors, who will likely be the greatest casualty of a negative outcome to the UK referendum.
Despite the meandering route, it looks as if the UPC ratification is progressing and delay is more likely than abandon at this point. To ensure the best understanding of the various UPC activities thus far, let’s look again at the road to the Court as it currently stands.
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