In a statement issued by the UKIPO yesterday, the UK Government has confirmed that it is proceeding with preparations to ratify the United Patent Court (UPC) Agreement.
According to the UPC Agreement, one of the requirements that must be met before the UPC can come into force is that the three member states having the most European patents in 2012 must all ratify the agreement. France has already ratified the agreement, and Germany is in the process of doing so. The UK is the final of the three key states, and therefore it must ratify the agreement before the UPC can come into effect.
Following the Brexit referendum earlier this year, the future of the UPC became unclear. Until the UK has formally left the EU, it is still one of the key states that must ratify the UPC Agreement. However, if the UK leaves before the UPC comes into effect, Italy becomes the final key state since it had the fourth most European patents validated in 2012. Italy has yet to ratify the UPC Agreement, and has previously been sceptical due to the choice of official languages that would be used in UPC proceedings. If the UK left the EU before ratifying the agreement, it would place the fate of the UPC in the hands of Italy, while if it ratified then left the EU the fate of the UPC and particularly the central division located in London would also be uncertain.
The UK Government has always maintained that it will continue to play a full and active role in the EU while it is still a member state. This latest announcement is evidence of this, although Baroness Neville Rolfe (Minister of State for Intellectual Property) stressed that the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU. Nevertheless, if the UK ratifies the agreement in the coming months, it is likely that the UPC will be in place before any Brexit takes place.
Many questions still remain, such as would the UK be forced to leave the UPC should it be in place once the UK leaves the EU? If the UK does remain part of the UPC once leaving the EU, how would it interact with the CJEU, which is expected to act as the final instance court of appeal for the UPC?
These and other issues are in principal all resolvable and will no doubt form part of the complex negotiations between the UK and EU should Brexit take place. In the meantime, the prospect of a European patent and pan-European patent litigation in the UPC just moved a step closer.