The Unified Patent Court (UPC) Agreement requires ratification by 13 participating states in order to come into force, including France, Germany and the UK. The current position is that 12 states including France have ratified, so everyone is looking to the UK and Germany to complete the process. As well as ratification of the main UPC Agreement, sufficient countries also need to approve the Protocol on Provisional Application in order to commence the provisional application period, which will allow aspects of the UPC Agreement to come into force early, so that essential preparations for the new court can be completed, such as the appointment of judges. Approval of the Protocol by a few more countries is still needed in order for it to come into effect. As a result, the UPC Preparatory Committee has acknowledged that it will not be possible for the UPC to become operational in December 2017 as they had previously envisaged.
UK ratification of the UPC Agreement and Protocol has been delayed by the General Election. The position of the Conservative party, which was in government before the election, was that if re-elected they would continue the ratification process. The Conservative party lost seats in the election but remains the largest party in Parliament and it is expected to form a Government as a minority administration. Indeed, Jo Johnson has already been reappointed as the minister for Science and Universities, with responsibility for intellectual property matters. Given that none of the other political parties has opposed ratification, there is no reason why ratification of the UPC Agreement and Protocol should not follow. However, there may not be enough time to complete the ratification process before Parliament’s summer recess, in which case ratification is likely to take place in the autumn.
Ratification by Germany also looks likely to be delayed, due to a challenge being brought in the Federal Constitutional Court. The existence of this challenge came to light on 13 June 2017 but the nature of the challenge is not yet public knowledge. The complaint will not be published by the Court so the details will only become known if the complainant releases them. What is known is that the Federal Constitutional Court has requested the German Government not to enact the national legislation necessary to enable ratification of the UPC Agreement until the Court has considered the complaint. If the complaint is upheld, that could de-rail the UPC and unitary patent system entirely, at least in its current form. For those looking forward to the implementation of the new UPC system, it is to be hoped that the complaint will be rejected. The UPC Agreement was signed in February 2013, so any constitutional issues should have been apparent years ago. Hopefully the complaint will be found to be without merit, but if the complaint is rejected, German ratification is now likely to be delayed for several months.