Summary: The UK has today, on World Intellectual Property Day, ratified the Unified Patent Court Agreement. Only ratification by Germany stands in the way of the Unified Patent Court opening its doors for business.
The UK government has announced today (26 April) that the UK has ratified the Unified Patent Court (UPC) Agreement. The government confirmed its intention to ratify back in November 2016. That announcement came as a shock to some as it had been widely assumed that the vote for Brexit would result in the UK taking no further part in the UPC regime.
The UPC will have jurisdiction over disputes concerning European patents and European patents with unitary effect across its contracting states. It will be able to deliver one judgment (and have the ability to issue injunctions) in cross-border patent disputes (although rulings will only have effect in those countries that have ratified the UPC Agreement at the time). Patentees will no longer have to litigate in individual EU states, resulting in potentially quicker and cheaper resolution of patent disputes.
16 countries have now ratified the UPC Agreement. Only ratification by Germany is required before the UPC Agreement can come into force. Only then can the court officially open for business. German ratification has been delayed by a constitutional challenge to the ratification legislation. This challenge was launched before the German Federal Constitutional Court (Bundesverfassungsgericht). The issue is listed to be heard during this year. Unless and until the court determines that the ratification legislation adequately meets Germany’s constitutional requirements, the UPC remains on hold.
From a Brexit perspective, the UPC will be supervised by the Court of Justice of the European Union and therefore requires an acknowledgement that EU law is supreme in respect of European patents and European patents with unitary effect. This concept seems fundamentally at odds with exiting the EU but the UK government has been quick to point out that the UPC is an international, not an EU, court established by international treaty. Ultimately, the UK’s future within the UPC will form part of the Brexit negotiations.