In a welcome but, to many, surprising development, the UK Government has confirmed that it intends to ratify the Unified Patent Court Agreement. Once the UK ratifies, Germany is expected to follow, and the new patents court will come into effect four months later, enabling for the first time European-wide patent validity and infringement disputes to be resolved in a single forum, and unitary patents covering much of the EU to be granted by the European Patent Office. The UK will be working to bring the Unified Patent Court (UPC) into operation “as soon as possible”.
At the time of the UK’s referendum on membership of the EU in June this year, the necessary ratifications were expected to be completed in the autumn of 2016 so that the court could open its doors at the beginning of 2017. The UK had already enacted domestic legislation in anticipation of the UPC and unitary patent and had taken out a lease on the proposed court premises in London. The vote for the UK to leave the EU (known as Brexit) brought everything to a standstill: if the UK was no longer going to be part of the EU, would it really contemplate ratifying an agreement whose very purpose was the creation of a court common to EU member states, and a court that is obliged to respect the primacy of EU law? The answer now appears to be, yes.
The UK Government confirmed that the UK intends to play a full and active role in the EU for as long as it remains a member. On leaving the EU, the UK desire is for a deal with the EU that will “give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.” It therefore looks as if longer term strategic thinking has influenced the UK Government’s position. Furthermore, it may well be possible for the UK to continue to participate in the UPC and unitary patent following the UK’s departure from the EU. That will inevitably depend on the relationship between the UK and the EU that is negotiated over the coming years. There is, however, a warning in the UK’s formal announcement: the decision to ratify “should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU”.
For now, yesterday’s announcement is positive news for all the users of the patent system. It finally looks like Europe will bring to fruition forty years of negotiations on a common patent court. Businesses, as well as practitioners, will need to start preparing for the new patents regime in earnest.