With ratifications from the UK and Germany expected imminently, the Unified Patent Court is expected to be operational in December 2017, with the first unitary patents anticipated to be granted in late December 2017.
Where we are on ratification of the UPCA?
So far, 11 EU member states have ratified the Unified Patent Court Agreement (UPCA): Austria, Belgium, Bulgaria, Denmark, France, Luxembourg, Malta, Netherlands, Portugal, Sweden and Finland.13 ratifications are required for the UPCA to enter into force, which must include ratifications by France, Germany and the UK. Ratifications by Germany and the UK are therefore keenly awaited.
The UK is expected to ratify the UPCA later this month (March 2017). Last year the UK commenced the ratification process in March 2016 by enacting a statutory instrument entitled the Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016. Things then went quiet following the referendum in June, until October 2016, when the Minister for Intellectual Property announced that the UK would proceed with preparations to ratify the UPCA (see our previous blog post).
On 20 January 2017, the Protocol on Privileges and Immunities of the Unified Patent Court (Protocol) was presented to Parliament. Parliament must now enact a further statutory instrument implementing the Protocol, which had to "sit" for a minimum of 21 days. We understand that the statutory instrument is due to be published shortly.
On 9 March 2017, the Bundestag (German Parliament) will sit for its second and third (final) readings of the draft bills required for Germany's participation in the UPC system. One of the bills will authorise Germany's ratification of the UPCA (bill 18/11137), and the other will amend German patent law (bill 18/8227). After the second and third (final) readings a final vote will be held. If the bills are passed, they will be submitted to the Bundesrat (German Federal Council) for the next stage.
At the Unitary Patent package conference in Amsterdam in early February 2017, Alexander Ramsay (chairman of the UPC preparatory committee) and Kevin Mooney (chairman of the drafting committee for the Rules of Procedure) outlined the timeline for the UPCA.
The Unified Patent Court is expected to be operational in December 2017 and the first unitary patents are expected to be granted in late December 2017. The start of the sunrise-period to opt out existing non-unitary European patents is planned for early September 2017; this will provide a minimum of three months for patent owners who wish to opt out their patents to do so before the court becomes operational. This timetable is obviously conditional upon the necessary ratifications by the UK and Germany.
There was discussion at the Amsterdam conference about Brexit and how it will impact the UK's participation in the UPC system. Of particular concern were Theresa May's recent assertions that the CJEU should not influence UK law, and that UK law should be decided in Westminster. Alexander Ramsay was confident that the UK would stay in the UPC system post-Brexit, reportedly stating that "… the UPC will not apply UK law. The ECJ will to some minor extent influence the interpretation of EU law, which will be applied by an international court - a court located in the UK, but that's not the same thing. The ECJ will not influence UK law, even if the UK would participate in the UPC. That's an important distinction, at least in my view."
Although the Brexit White Paper published in February 2017 does not mention the UPCA specifically, in Chapter 2 it refers to the UK "honour[ing] our international commitments and follow[ing] international law". It seems that the UK is likely to participate in the UPC system post-Brexit. One division of the court (chemicals and life sciences) is planned for Aldgate Tower on the edge of the City of London, where preparations have been on-going for some time.
We will continue to keep you posted as developments unfold.
With thanks to Madeeha Husain Anthony for writing this blog.