Yesterday, the UK’s Privy Council approved the draft Unified Patent Court (Immunities and Privileges) Order 2017 , which was the penultimate step required to pass this Order in Council, the draft having been approved by both Houses of Parliament in December 2017. (The Privy Council’s approval will be published on its website here.) Following the Privy Council’s meeting, the approved Order must now be ‘moved’ on the floor of the Houses of Parliament to take effect; this is expected to be on Thursday 15 February. This Order was the one remaining piece of legislation required for the UK to be able to ratify the Protocol on Privileges and Immunities (PPI) of the Unified Patent Court (UPC) and also the UPC Agreement. The Order (made under the International Organisations Act 1968) will confer legal status on the Court and certain privileges and immunities on the Court and its judges and other staff to ensure its proper functioning. The Order’s Scottish equivalent (SSI 2017/447), which relates to certain devolved matters, was made on 13 December 2017. A section of the Court’s central division, and also a local division, will be in London and the UK is one of the four countries that must deposit its instrument of ratification, approval or accession, in order for the PPI to come into force.
Unlike some of the UPC Agreement’s other contracting states, the UK requires all its relevant legislation to be in place before it can ratify the Agreement. Apart from the two privileges and immunities Orders, the other pieces of legislation (which will give effect to the UPC Agreement and EU legislation on the unitary patent) are the Intellectual Property Act 2014 c.18, The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 (SI 2016/388), The Patents (Isle of Man) (Amendment) Order 2017 (SI 2017/162) and The Patents (Amendment) Rules 2016 (SI 2016/517).
Ratification of the UPC’s PPI and the UPC Agreement must be effected by the Foreign and Commonwealth Office on behalf of the UK, and the next step will be for the Intellectual Property Office to request it to do so. This will require a formal letter (signed by Boris Johnson, the Foreign Secretary), stating that the UK agrees to be bound by the UPC Agreement and the UPC’s PPI, which will then need to be deposited with the EU Council’s General Secretariat in accordance with Article 84(3) UPC Agreement.