UPC - where are we now?

This time last year the expectation was that Europe’s new Unified Patent Court (UPC) would be open for business in December 2017. That deadline has now passed and it is currently unclear when the UPC will open. Although progress was made last year, with only the UK and Germany now required to ratify the UPC Agreement for the UPC to open, delays have arisen due to the UK general election called in June 2017 and a private challenge to the UPC system before the German Constitutional Court.

UK

The UK Government announced in November 2016 that it would ratify the UPC agreement despite the Brexit vote. In December 2017 the House of Lords approved the delegated legislation needed for the UK to ratify and it is now awaiting approval by the Privy Council; their next meeting is anticipated to be in February. In December 2017 the Law Society of England and Wales, along with the IP Bar Association, the Chartered Institute of Trade Mark Attorneys and the IP Federation, produced a joint position paper summarising the key priorities and recommendations for the Government to consider in relation to IP and Brexit. With regard to the UPC the paper recommends that the Government should now do the following: (a) confirm that it is the UK's intention to stay in the UPC, and that the UK is prepared to abide by the terms of the UPC Agreement, following Brexit; (b) work towards the coming into effect of the UPC as soon as reasonably practicable in collaboration with other UPC Member States; and (c) work with other UPC Member States and EU institutions to ensure there are no legal or practical obstacles to UK participation in the UPC and the Unitary Patent, following Brexit, on equal terms with other Member States. The paper further provides that the Government’s objectives should be (i) continuation of the Central Division of the UPC Court in London; (ii) continued involvement of UK national judges; and (iii) continued rights of participation of legal professionals qualified and based in the UK in all parts of the Court’s procedures on the same terms.

Germany

German ratification is dependent on the outcome of a challenge brought in April 2017 before the German Federal Constitutional Court regarding the constitutionality of the legislation enabling ratification. The German court is currently assessing the admissibility of the challenge. If the challenge is inadmissible, Germany will be able to ratify soon after. If, on the other hand, the challenge is admissible, the procedure to a decision on merits is likely to take about a year.

Although hard to predict at this stage, it is possible that the UPC could open towards the end of this year, with a provisional phase starting in the summer. Consequently, and despite the uncertainty, businesses should continue preparing for the UPC and keep it in mind when considering future patent filing and litigation strategies.