With the passing by the Privy Council on 8 February 2018 of the Unified Patent Court (Privileges and Immunities) Order 2018 the UK has completed all of the necessary legislative steps to enable it to ratify the UPC Agreement.
On 8 February 2018 the Privy Council “made” the Unified Patent Court (Privileges and Immunities) Order 2018, thereby completing the final remaining pre-requisite to enable the UK government to ratify the UPC Agreement. This Order (the “Westminster SI”) lays the groundwork required for the UPC to operate in the UK, granting it legal capacities and immunities which are customarily accorded to similar bodies, such as inviolability of its records and premises and immunity of its officers and employees whilst in the conduct of their duty. This mirrors an equivalent Scottish statutory instrument, the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 (the "Scottish SI"), which was approved by Holyrood in October last year.
The approval of these orders is significant because, as illustrated in our flow-chart below, all that now remains is for the UK Government actually to ratify the UPC Agreement, a step it may take whenever it wishes. This will be accomplished simply by way of a letter, which must be signed by the Foreign Secretary Rt Hon Boris Johnson MP and deposited with the European Commission.
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However whilst the government now has the power to ratify the UPC Agreement, it is not compelled to do so; therefore the key question now is “what next?”. The last official statement from the government, made by the previous IP Minister Jo Johnson MP, expressed the UK’s continued commitment to the UPC as follows (emphasis added):
“We do want this Court to come into existence. We have been supporters of it from the outset, we think it is going to play a really important role in enabling businesses to enforce their intellectual property rights at the lowest possible cost, or certainly at a much lower cost that many companies find to be the case at the moment. So we are supportive of it and want to continue to play a facilitating role in setting it up. After we leave the European Union in March 2019 we understand that we will have to negotiate a new relationship to the UPC and we want to do that in as seamless a way as possible… Our position is that while the UK remains a member of the EU, we will and we should complete all necessary legislation so that we are in a position to ratify the [UPC] Agreement. Whatever the UK’s future relationship with the UPC will be, we will need… to negotiate with our European partners to reflect the change to the UK’s status that will have taken place when we leave the EU in relation to the UPC.”
Despite these and other generally positive words, keen-eyed observers noted that the only actual commitment Mr Johnson offered was the one underlined above, namely to “complete all necessary legislation so that we are in a position to ratify the [UPC] Agreement.” Mr Johnson is no longer at the helm, having recently been succeeded in his role as IP Minister by Sam Gymiah MP. Mr Gymiah, perhaps unsurprisingly given that he was until recently the Prisons Minister, has not yet publically expressed a position on the UPC but observers do not expect that his appointment will mark any great change in the government’s policy with the UPC . However, with the approval of the Westminster SI by the Privy Council earlier this month, the furthest bounds of that previously stated policy have now been reached.
The Minister’s closing words in the quotation set out above, referring to negotiation with our European partners in light of the UK’s change of status on leaving the EU, may cause some disquiet amongst patent lawyers, dripping as they are with allusions to the UPC being tossed into the mix in the wider Brexit negotiations.