The Minister for Intellectual Property, Baroness Neville-Rolfe, today announced that the UK will proceed with preparations to ratify the Unified Patent Court (UPC) Agreement before it leaves the EU and that it will work with the Preparatory Committee to bring the UPC into operation "as soon as possible". This means the Unitary Patent and UPC should now be able to proceed as planned, provided that Germany also ratifies the UPC Agreement.
While ratification of the Agreement is a step towards the UK's membership of the UPC system, it is by no means a guarantee that the UK will remain a member after it leaves the EU. Although there is no mechanism to eject a country from the UPC system if it leaves the EU, it is likely that the UK will need to negotiate a separate agreement with other signatories to the UPC agreement if it wishes to remain in the system after Brexit. An important issue will be the need to accept the role of the CJEU in the UPC system, a pill which might be easier to swallow on the basis that the Agreement is an International Treaty and not EU law.
Given that the UK is a significant patent jurisdiction (it was one of the three states with the most European Patents in effect in 2012), the Unitary Patent would be significantly devalued without the UK's participation. This could give other participating members the incentive to co-operate with the UK government in order to reach an agreement which allows the UK to remain a member of the UPC after Brexit.
Some will be pleased at the prospect of joining the system now and being involved at least in the early stages of its development. Others will be concerned that if the UK does go ahead and ratify the UPC agreement now, the UK will be making a serious commitment (in terms of resourcing, for example) without any assurances from other signatories regarding its position post-Brexit.
It will be interesting to see how matters unfold in the coming months.