The UK’s ratification of the UPC Agreement will have to wait for after the election of the next government. In fact, the UK parliament was dissolved at the end of April, 25 working days before the general elections. It was also dissolved before ratifying the UPC Agreement. This is likely to have a major impact on the starting date of the UPC. Indeed, it was initially announced that all necessary instruments of ratification would need to be deposited by the end of May. This was in order for the UPC to become operational in December 2017.
The Patent (European Patent with Unitary Effect and unified Patent Court) Order 2016 N°.388:
The UK has already amended the Patent Act 1977 through secondary legislation. The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 N°388, passed in March 2016, implements the UPC Agreement. It also defines its jurisdiction, the transitional provisions, necessary modifications, and conditions of enforcement of the Agreement.
Therefore the UK only needs to pass an order to implement the Privileges and Immunities Protocol, which it signed in December 2016:
- The UK and Scottish parliaments must first approve this order.
- The Privy Council will then give its the final assent.
- Once this legislation has been passed, the UK will be able to formally ratify the UPC Agreement.
It is however uncertain when the UK parliament will examine the ratification bill. Indeed, depending on the Government’s priorities, it will present the bill to the Parliament either before or after the summer recess. This means that the UK’s ratification of the UPC Agreement could either take place between June and July or after September.
What consequences will a late ratification by the UK have on when the UPC will become operational?
This new postponement of the UK’s ratification also raises questions as to Germany’s ratification. German parliament has in fact recently approved the ratification and amendment bills. Germany was thus expected to trigger the start of the UPC by depositing its instrument of ratification in August, after the UK had done so. However if the UK does not ratify the UPC Agreement by this date, Germany may postpone the submission of its instrument of ratification. This could potentially slow down again the start of operation of the UPC; not to mention the German general elections on 24 September 2017 which might also delay it further.
Therefore, this would mean that if -at best- the UK and Germany deposit their instruments of ratification respectively in July and August 2017, the UPC would become operational in February 2018, after the 6 months necessary to the provisional application.