The start of the Unitary Patent and the Unified Patent Court (UPC), has been delayed for an, as yet, undetermined period. The previous schedule set by the preparatory committee, in which the Unitary Patent Package would enter into effect on December 1, 2017, has been proven incompatible with the real world political and legal developments in the major European countries.
Ratification of the UPC Agreement by France, Germany, and the UK and at least ten other EU member states is required. The only ratifications that are currently missing are the ones of Germany and the UK.
Despite earlier official announcements to the contrary, the UK has not ratified the UPC Agreement so far. Between the general elections in June 2017 and the summer recess, it is expected that the UK government has other issues on its agenda than the UPC Agreement. However, the further the Brexit negotiations proceed, the more likely it is that ratification of the UPC Agreement will become a subject of these negotiations. As an example, the future participation of the UK in the UPC or the manner in which it extracts itself will likely become part of these negotiations. This may well cause further delays – even up to the point that the UK actually leaves the EU.
Most recently, developments in Germany raise more doubts about the start of the Unitary Patent Package. In June 2017, German President Frank-Walter Steinmeier announced that he will postpone signing the legislation that implements the UPC, following a request from the Federal Constitutional Court of Germany (Bundesverfassungsgericht). This request is the consequence of a challenge to the constitutionality of the legislation that would enable the ratification of the UPC Agreement. The challenge was filed by a private individual but the substance of the challenge has not yet been made available to the public.
It is not clear whether the German challenge will actually delay the Unitary Patent Package further, since it is being treated with urgency by the Federal Constitutional Court. Therefore, it is not unlikely that its decision will be available before the UK has ratified the UPC Agreement. If the Federal Constitutional Court decides that the challenge is unfounded, then the timing of the Unitary Patent Package will still finally hinge on the developments in the UK. On the other hand, were the challenge upheld and if the issues are so serious that a remedy cannot be found, then the whole package might be off the table.
In fact, the German parliament has already passed the relevant legislation to allow the ratification, but the ratification does not take effect until the Office of the President signs and publishes that legislation. The intention is that Germany ratifies only when it is satisfied that the facilities of the UP Court are up and running and a sufficient number of other EU member states have ratified, so that the ratification of Germany triggers the start of the Unitary Patent Package. Given the present developments, it will take some time until this goal is achieved. On a positive note, by the time that happens, a larger number of EU member states may be participating. Twelve EU member states have already ratified, and more ratifications are underway, including those of Slovenia, Estonia, Latvia, Lithuania, and Greece.