Speaking in a Delegated Legislation Committee hearing, the proxy for debate in the House of Commons on the draft Unified Patents Court (Immunities and Privileges) Order 2017, the UK’s IP Minister yesterday expressed the government’s continued commitment to the UPC and its plans for the future. The instrument has now passed the committee stage, which marks the end of debate on the issue, and will require votes by both the House of Commons and the House of Lords before it can come into effect.

The Statutory Instrument

Those who have been following the somewhat tortuous process of the UK readying itself to ratify the UPC Agreement will be aware that before it can do so two statutory instruments are required to be passed, one by each of the Scottish and Westminster parliaments (the “Scottish SI” and “Westminster SI”) respectively. The purpose of these instruments is to lay the groundwork which is required for the Unified Patent Court to operate in the UK, such as establishing it as a corporate entity and granting it certain privileges and immunities (for example inviolability of its records and premises).

The Scottish SI has already been passed, having been approved by the Scottish parliament on 25 October this year, but the Westminster SI has been lagging behind. However, another significant step was taken yesterday as the draft Westminster SI (the Unified Patents Court (Privileges and Immunities) Order 2017) was approved by a Delegated Legislation Committee of the House of Commons. This represents the end of the committee stage, and is incredibly significant because it also marks the end of debate on the instrument. Whilst the Westminster SI must now be approved by votes of both Houses (the Commons and the Lords), its consideration and approval by the various committees stands proxy for debate in the full Houses, so the remaining steps are unlikely to be more than simply a matter of formality. We have illustrated the process, showing both the steps already taken and those that remain, in a quick-reference flow chart which we set out below:

Click here to view larger image.

No dates have yet been published for when the Westminster SI will be considered by either the House of Commons or the House of Lords. Stay tuned to Allen & Overy’s UPC Microsite for further updates, in particular, our various quick-reference flow charts which can be found under the “Where are we now?” tab.

If you are interested in reading more about the role of the various committees and the parliamentary procedure that these Statutory Instruments have followed, see our short and helpful guide here.

What happens after the SI has been passed?

Speaking at the Delegated Legislation Committee meeting in support of the Westminster SI, the UK government Minister responsible for Intellectual Property, Jo Johnson MP, signalled the government’s continued support for the Unitary Patent and the Unified Patents Court, stating that:

“In its current form the patents system across Europe is fragmented and expensive. Businesses must maintain a bundle of patent rights each covering a single county. They must also enforce each patent separately in the national courts of each country; this is costly and burdensome. This unified patent court will offer a way for innovative businesses to enforce or challenge patents in up to 26 European countries with a single court action. This ability to obtain a single judgment is potentially significant and valuable to patent intensive industries, for example independent research shows that around a quarter of all patent cases heard at UK courts were also litigated in other jurisdictions between the same parties. That is why a single Unified Patent Court is welcome. An important division of the court, dealing with disputes in the field of pharmaceuticals and life sciences, will be based here in the UK. This cements our global reputation as a place to resolve commercial legal disputes. ”

This received resounding support from his counterpart, the Shadow Minister Jack Dromey MP, who described the continuing legislative process towards ratification as “an eminently sensible move that the opposition wholeheartedly supports.

Once the Westminster SI has passed, all that remains is for the government to sign the UPC Agreement and deposit its instrument of ratification. During the hearing, Mr Johnson MP also reaffirmed the UK’s commitment to continue driving this forward, albeit without stating explicitly that the government would ratify once it is in a position to do so:

We do want this Court to come into existence. We have been supporters of it from the outset, we think it is going to play a really important role in enabling businesses to enforce their intellectual property rights at the lowest possible costs, or certainly at a much lower cost that many companies find to be the case at the moment. So we are supportive of it and want to continue to play a facilitating role in setting it up. After we leave the European Union in March 2018 we understand that we will have to negotiate a new relationship to the UPC and we want to do that in as seamless a way as possible… Our position is that while the UK remains a member of the EU, we will and we should complete all necessary legislation so that we are in a position to ratify the [UPC] Agreement. Whatever the UK’s future relationship with the UPC will be, we will need… to negotiate with our European partners to reflect the change to the UK’s status that will have taken place when we leave the EU in relation to the UPC.”

Some difficult questions were asked in the hearing by Labour MP Angela Eagle, questioning what would be the status of the UPC and the UK’s participation in it post-Brexit as well as the role of the Court of Justice of the European Union. Frustratingly for observers of the UPC, who have been asking the very questions posed by Ms Eagle ever since the result of the Brexit referendum was announced in June 2015, the chairman of the committee considered them to be outside of the scope of the hearing and directed the Minister to restrict his answers to the issues of privilege and immunities which are the subject of the Westminster SI. These burning questions remain unanswered, therefore, and it remains to be seen when and if so to what extent, further clarity is obtained.

A recording of the Delegated Legislation Committee meeting is available online on the Parliamentary TV website, here.

To keep up to date with the overall status of ratifications of the UPC Agreement, go to Allen & Overy’s UPC microsite. There you will find a summary of current ratifications, as well as a flow chart setting out the steps remaining before the UPC opens its doors.