Unitary Patent: UK ratifying

The United Kingdom continues with ratification preparations of the Unified Patent Court agreement of the Unitary Patent System

A major breakthrough for enacting the unitary patent protection system was achieved on November 28, 2016 by an official press release by the UK Minister of State for Intellectual Property, Baroness Neville Rolfe. She announced that the UK will continue with preparations for ratification over the coming months and will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible.

Continuing participation of the UK in the Unitary Patent System after the Brexit

In view of the upcoming Brexit, the first impression may seem a little surprising. However, giving it a more detailed view it may not be that surprising after all since the UK has always taken a positive stance toward the Unitary Patent System. Even though this system is based on an EU Regulation it is not directly tied to the EU. For instance, the European Patent Convention (EPC) as it is currently in force allows under Article 142 EPC Unitary Patents to groups of non-EU-but-EPC countries, see http://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ar142.html. A number of members of the European Patent Convention EPC are not members of the European Union. According to some opinions, this Article 142 EPC also envisages the continuing participation of the UK in the Unitary Patent System after the Brexit. How it all pans out in view of these complex questions of International Law is yet to be seen. A solution securing the UK’s continuing participation seems nevertheless likely. In this connection it also needs to be kept in mind that the entire Unitary Patent system is an “enhanced cooperation” among most but not all EU member countries since at this point Spain and Croatia still do not participate in the system and Poland maintains its wait and see approach.

The European Council welcomes UK’s ratification process

The European Union institution “European Council” charged with defining the EU’s overall political direction and priorities has already been notified by a delegation from the United Kingdom of the UK’s decision to start preparations for the ratification of the agreement for the establishment of the Unitary Patent Court. The European Council expressed that this paves the way for the unitary patent protection system to enter into operation as soon as possible in 2017, see http://www.consilium.europa.eu/en/meetings/compet/2016/11/28-29/.

The Unified Patent Court (UPC) ratification status

The mention of the Unitary Patent Court becoming reality possibly as early as in 2017 prompts a look into the ratification status https://www.consilium.europa.eu/en/documents-publications/agreements-conventions/agreement/?aid=2013001 of the Agreement on a Unified Patent Court. This ratification status reveals that 11 countries, Austria, Belgium, Bulgaria, Denmark, Finland, France, Luxembourg, Malta, Netherlands, Portugal and Sweden have ratified. The Unitary Patent System comes into force when in total 13 EU countries have ratified, among these the indispensable countries France (ratified already in 2014 as one of the early on countries), Germany and the United Kingdom, the latter 2 still missing. This means, when the UK and Germany ratify, the Unitary Patent System comes into force. Germany has started the ratification process and draft bills on the ratification of the Unified Patent Court (UPC) Agreement and on implementing the Unitary Patent (UP) system already exist. This makes 2017 indeed a likely year for enacting what has been in the works for many years since the failed early attempts, back then in the 70’s called Community Patent Convention.

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