The future of the European Unitary Patent – dark clouds on the horizon?

The art of prophecy is very difficult, especially with respect to the future. Predicting the future of the European Unitary Patent - and the UK's position on it - is no exception.

In March 2017, the UK Intellectual Property Office mentioned that the implementation legislation for the European Unitary Patent and the Unified Patent Court (UPC) would be passed, according to schedule, in spring 2017 and that ratification of the Unitary Patent Court Agreement (UPCA) would follow in due time so the UPC could start operating as expected in December 2017.

Ratification or summer recess?

Mrs. May's decision to hold a general election in June has had unfortunate interference on the government's schedule; Parliament has not passed any legislation on the still outstanding Protocol on Privileges and Immunities, which grants UPC members the benefits normally given to the personnel of international agencies.

Although it is possible that, even after the election, parliament will be able to pass the necessary legislation before its summer recess (in July) and be in a good position to ratify the UPCA in August. It is more likely that ratification will occur in September, or even later, meaning that the UPC will most likely not start operating until spring 2018.

As in the UK, the UPC legislation is still being approved in Germany. The necessary legislation passed the Bundestag (the German parliament) on 27 April 2017 and was recently approved by the Bundesrat (Federal council, second house) on 02 June 2017, although, in the past, Bundesrat members were dissatisfied with the tax privileges the UPC-judges are to enjoy. However, a delay of the UK ratification could still cause problems with ratification in Germany. The German federal government has continually emphasised that the legislation will not be presented for ratification until after the UK ratifies it. If ratification in the UK happens as late as September, then it will be up to the newly elected federal government to reconsider this issue.

Exit with Brexit – will the UK maintain its membership?

It remains completely unclear whether the UK will remain part of the UPC-system after Brexit. There are essentially two main opinions on this: One rather optimistic opinion, coming mainly from German authors, is that only slight modifications to the framework of the UPCA will be necessary to secure the further participation of the UK after Brexit. On the other hand, British experts conclude that some aspects of the UPCA will have to be changed for the UK to remain involved.

Both opinions agree that the political will in the UK will be fundamental for the UK to maintain its membership in the UPC-system. In fact, a simultaneous Brexit and exit from the UPC-system is not only be possible but necessary, if the UK does not agree with any changes in the UPCA. This is because the current framework states that only EU Member States may partake. British lawyers have expressed some skepticism since an exit from the UPC-system would be rather consequential against the background of a "hard" Brexit.

Quo vadis Britannia?

When will the UK ratify the UPCA? Is it a realistic scenario that London will give up the access of British lawyers to the UPC, its branch of the Central Division for chemicals and necessities and the its judges taking part in the UPC once Brexit becomes effective?

Opinions on the consequences of Brexit should be taken with a pinch of salt and commentators should focus on the initiation of UK ratification of the UPC legislation. Afterwards, UPC-prophets will have plenty of time to face the challenge within the context of Brexit negotiations.

For more information, please contact Dr. Thomas Hirse and Paetrick Sakowski.