Ratification of the Unified Patent Court Agreement (UPCA) in Europe enters a critical phase and attention is focusing squarely on the UK and Germany. Experience warns us never to under-estimate the glacially slow development of the UPC and the unitary patent, the current attempt being now in its 17th year, and this week has demonstrated, once again, how unpredictable this project really is.
Put simply, ratfication of the agreement requires, firstly, that 13 countries have to ratify the treaty for the UPC to spring into existence and, secondly, that the ratifying states must include France, Germany and the UK. If the reports that Slovenia and Estonia are close to national ratification are correct, the total of number of ratifications would stand at 14. Having exceeded the magic 13 parliamentary approvals, the UPC ratification process now relies on fulfilling the second requirement: the whole project then depends on just two states - UK and Germany - each of which must complete national ratification for the UPC to be born (France having ratified way back in 2014).
Despite its Brexit aspirations, the UK government confirmed in November that it still supported the UPC and that Brexit would not be an impediment. After a bruising humiliation in the general election, Her Majesty’s now seriously wounded government has resumed the parliamentary ratification procedure and announced yesterday (26 June 2017) that it had started the final step in the legislative process toward the UK’s ratification. Notwithstanding ongoing concerns about the UK’s continuing UPC membership post-Brexit, the UK appears to be committed to the UPC.
The main legislation has already gone through UK parliament and the last element of the process, comprising relatively minor secondary legislation (an order related to privileges and immunities of the new institution), has now commenced in the House of Commons. Both houses of the UK parliament, as well as the Scottish parliament and the Privy Counsel will debate the order: the remaining process may be completed before the summer recess.
With positive steps being taken by the UK, the spotlights now swings round to the other country in the second requirement: Germany. Despite its strong integrationist credentials and status as historic bulwark of the European patent system, Germany’s ratification process, in contrast to that of the UK, seems to have hit a new snag, with an unexpected request by the Bundesverfassungsgericht, the German Federal Constitutional Court, to stay the German national ratification of the UPCA.
The precise reason for the request, and its significance, is not currently known but, of course, speculation is rife. Some observers link the court’s request to Brexit and the implications on the UPC project, especially as the UK is due to house key parts of the new institution. At the moment it is difficult to see which constitutional implications the UK’s membership of the UPC pre- and post-Brexit would have on Germany. With Brexit negotiations due to last another 21 months, pessimists wonder if this means Europe has to wait till the final terms of Brexit are clear, before Germany moves forward on the UPC.
However, there is also speculation that the Constitutional Court is looking at the wider European patent system, not just the UPC, and, in particular, considering perceived shortcomings in the governance and workings of the European Patent Office (EPO), which in recent years has suffered from serious disputes between its internal bodies, including the EPO president and the Boards of Appeal, with the overall governing body, the Administrative Council, too weak to provide effective control.
Presumably the coming weeks will reveal the motivation for the request to stay German ratification. Whatever the real reason for the request, ratification by Germany looks set to be delayed by at least a few months, and it seems the country (if any) which finally triggers UPC existence will be Germany, and not the UK.