Brexit and now the forthcoming UK general election looks set to further delay the UK’s ratification of the Unitary Patent and Unified Patent Court (UPC) system, pushing further back the projected date for its implementation. We look at the progress to date...

The UPC system looked to have taken another step forward earlier this year when Italy deposited its instrument of ratification of the UPC agreement on 10 February. A total of 12 countries have now ratified the agreement, namely: Austria, Belgium, Bulgaria, Denmark, Finland, Luxembourg, Malta, the Netherlands, Portugal, Sweden, and France (one of the three mandatory ratifying countries).

The UK government announced plans last November to ratify the agreement and set up a divisional court in London despite fears Brexit would halt negotiations. In view of this, and in view of the UK’s intention to ratify the treaty, the European Patent Office (EPO) was pushing for an entry into force of the New UPC system by December 1, 2017. However, the surprise announcement of a general election for 8 June looks set to delay the passage of the legislation through parliament and thus also of the UPC System. Further, there will be general elections in Germany in September 2017 and initially Germany intended ratifying the Treaty before the elections so as to respect the December 1 deadline. Due to the possible delay caused by the UK general elections, this could also cause a further delay in Germany due to the German elections.

There is also, of course, ongoing uncertainty over whether the UK can even continue to participate in the new system post-Brexit, as the UPC agreement requires participatory countries to be EU members. In addition, the UK’s courts would be required to accept judgements by the Court of Justice of the European Union (CJEU).

Under plans, prior the Brexit vote, the UK was to host a specialist divisional court (competent for hearing cases in specific fields of technology according to the IPC: A, C - Chemistry and Life Sciences), as well as a Local Division. It seemed likely that these courts will no longer be located in the UK now that Article 50 has been triggered.

Slow progress While the results of the French presidential election could also have potentially impacted the stability of the European Union in May, the country has already ratified the UPC Agreement; it was one of the first countries to do so in March 2014. At present, the UK and Germany are the other two mandatory ratifying countries.

Although the timing for the implementation of the court system has slipped somewhat (the process was originally expected to be completed in 2014, if not sooner), the implications of the Unitary Patent right and associated patent court system is rightly on the minds of IP counsel throughout Europe and beyond.

With a marketplace of more than 500 million consumers, Europe is a major economic power, and one of the world’s largest importers and exporters of goods and services. Business owners know that if they are to trade successfully in Europe, they first need to ensure they’ve appropriately protected their IP rights in the territory. However, with 28 member states to cover, along with a number of important surrounding countries such as Switzerland, this has the potential to be an expensive exercise.

Once implemented, the new pan-European Unitary Patent right will provide businesses from within and outside the EU with an important new tool to protect their innovations throughout the participating member states and to enhance their success in what is already a highly competitive and inventive marketplace.

Unitary Patent: your gateway to Europe?

Don’t worry if you haven’t had a chance to fully consider the implications of the new European patent system to your business yet, however. We've set out the answers to some frequently asked questions in our Unitary Patent FAQs. You can also download these as a flyer here.