This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
Yesterday the UK Minister for IP, Baroness Neville Rolfe, announced
that the UK Government has decided to ratify the Unified Patent Court agreement. This now means that the agreement will come into force as soon as it is ratified by Germany. It is then not beyond the realms of possibility that the new court system could be operating in around a year’s time. The UPC Preparatory Committee intends to publish a “revised roadmap”
for the operation of the new system.
The UK does have an interest in the new system becoming a reality with a number of industry groups having provided their backing to a system set to simplify the enforcement of patents within the EU. However Brexit had been assumed to have placed the new court at the back of queue in the UK government’s list of priorities until it was recently suggested that imminent ratification was a real possibility. Now that an intention to ratify has been confirmed, the UK can look forward to the new court’s establishment (including a division of the central chamber in London) and the participation of UK judges in the court system – at least to begin with.
What ratification now creates is a further plate for the government to spin during the Brexit negotiations. This is because the UK’s continued participation in the new system after its exit from the EU is by no means certain. In order to be part of the new system the UK would need to recognise the authority of the Court of Justice of the EU in this particular field and accept that injunctions granted in EU Member States would have binding effect in the UK. This is all possible from a legal perspective, it is the acceptability of the UK’s continued role in the agreement from a political standpoint that will be the acid test.