Unified Patent Court Agreement: Update on ratification process

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This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Although signed in February 2013 the regulations to implement the European Unified Patent Court and Unitary Patent will only enter into force four months after 13 member states, including France, Germany, and the UK, have ratified the Agreement, and the required amendments to the Brussels 1 Regulation (which relates to enforcement of judgments across the EU) have been made.

The ratification may not be a routine or straightforward process since the Agreement contains provisions which will cede jurisdiction for patent disputes to Courts which are not part of each countries' judicial system. The Courts forming the Unified Patent Court (located in Paris, London, and Munich) will have jurisdiction to grant pan-European injunctions, and award damages, which have automatic effect in all countries.

At the start of 2014 only one country, Austria, has ratified the Agreement so far, and there are now the first signs of the ratification process being the subject of debate and disagreement. In Denmark the agreement can only be ratified if 80% of MPs support joining the Court. However, opposition MPs refused to support ratification unless the government offered new rules on migration or a referendum on joining the Euro in return. It is therefore necessary for Denmark to hold a referendum prior to ratifying the agreement. That referendum has been scheduled for 25 May 2014 in conjunction with the European parliamentary elections.

It will be interesting to follow what the public make of the often labyrinthine debate about the merits of the Agreement. It seems likely that rather than a real assessment of the merits, the public vote will be based on the general issue of increasing EU powers which could go either way.