The UK vote on whether to leave the EU (Brexit) on June 23rd is probably the key to whether the Unified Patent Court (UPC) opens and the Unitary Patent (UP) becomes available as planned in the Spring of 2017. Progress toward implementation of the UPC and UP will stall if UK voters choose to leave the EU, because the UK would necessarily play a key role in the UPC.

The EPO has declared it is ready to begin issuing UPs when the UPC Agreement comes into effect. Nine of the minimum 13 states have ratified the UPC Agreement. Ratification by a tenth state, Bulgaria, is expected soon. A number of other states are expected to complete their ratification process after a Protocol on Privileges and Immunities is signed at the end of June. Of the three states that must ratify in order for the UPC Agreement to come into effect, France has already ratified, and steps necessary for ratification by Germany and the UK are well-advanced.

A vote by the UK not to leave the EU is likely to trigger a flurry of activity. Patent owners will need to decide whether to validate new patents granted by the EPO as UPs and whether to opt-out of the UPC for their new and existing, conventional European Patents. We will provide an update on these issues after the June 23rd vote.