Plans for ratification of the Unified Patent Court (UPC) suffered a couple of severe knocks from Brexit and the stalling of German ratification on constitutional grounds. Could UK Prime Minister Theresa May’s latest pronouncements offer indirect hope at least for UK ratification of the UPC?

May’s position on the period immediately post-Brexit

While the politics of Brexit remain as febrile as ever, the first tentative steps forward indicating an actual position to be taken by the UK Government were set out recently. First by the Prime Minister in her speech in Florence on 22 September 2017. Then, most recently, on 9 October in the House of Commons in the bearpit that is known as Prime Minister’s Questions. In the latter, in response to a question about the so-called “implementation period” post-Brexit, May said: 1) that there will be a period post-Brexit when the UK will still be bound by the supremacy of the Court of Justice of the European Union (CJEU); and 2) “new rules” on the table during the implementation period will be something that the UK Government will comply with on the basis that they probably agreed with them pre-Brexit anyway.

What this could mean for the UPC

This is good for the prospects for UK ratification of the UPC Agreement (UPCA). It provides some comfort that the UK Government looks like it is willing to sign up to the UPCA as a “new rule”. It also addresses the fundamental stumbling block of the UK being bound by decisions of the CJEU (albeit temporarily). This would appear to cover the UPC – fingers crossed. I would add that sources close to the preparations for ratification of the UPC Agreement in the UK government are keen to insist that they really do mean to go ahead and do it. When this will happen in a very crowded legislative calendar is anybody’s guess but the first half of 2018 is where most bets are being placed.

So, cautiously good news for the likelihood of ratification of the UPC by the UK. This is good for the prospects of the UPC per se but it does nothing for the long-term prospects of UK participation in the UPC. The eventual most likely outcome of Brexit is that the United Kingdom will refuse to be governed by the decisions of the CJEU in general and thus be unable to participate in the new court system whose ultimate authority on points of law is the CJEU.

But there’s still the German question…

Even if the UK does ratify the UPCA, that still leaves Germany to sort out its own constitutional issues that have now stalled its ratification of the UPCA. The matter has been referred to German Supreme Court. Local pundits make reassuring noises about the outcome (but we all said that about the Brexit referendum don’t forget). Apparently the process will take many months, putting on hold the start of the UPC regardless of the UK’s deliberations.

Watch this space

All we can say is the light is shining just a little brighter for the UPC but that we are far from the clarity and certainty that everybody most desires. Continue watching this space!