The UK to join the Unified Patent Court

The UK Minister of State for Intellectual Property surprisingly announced on 28 November 2016 that the UK is proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA). The UPCA may thus come into force already in the autumn of 2017.

At the annual meeting of the European Patent Lawyers Association (EPLAW) on 25 November 2016, Margot Fröhlinger, the Principal Director of patent law and multilateral affairs at the European Patent Office, said that she anticipated this to happen.

The announcement that the UK wants to ratify the UPCA is extremely surprising as most people have so far considered this unlikely in view of the present political situation as the UK's participation in UPC will imply that the UK must submit to EU patent law (including relevant EU competition law rules). Brexit backers have criticised the far-reaching case law of the Court of Justice of the European Union.

As the UK is still a member of the EU, the actual ratification of the UPCA and the putting into operation of the UPC system can presumably just continue according to the advanced plans that were already in place before the Brexit vote in June 2016. The question is, however, how the system will proceed if (and, probably, when) the UK is no longer a member of the European Union.

In that connection, it may be a problem that the UK division of the central division of the UPC (the Court of First Instance) must still be able to refer questions to the Court of Justice of the European Union. It is a challenging task as today Article 267 of the TFEU only allows questions to be referred by the Member States. It must be assumed that these more technical questions will be answered.

In the interests of industry, it is to be hoped that clear and explicit solutions will be found with regard to the uncertainties arising in the wake of the UK's ratification and participation in the UPC to prevent any uncertainty about the effect of UPC decisions for many years to come. Uncertainties that will not be solved until the Court of Justice of the European Union has taken a position.

Read more in the press release published by the UK government

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