The United Kingdom government announced on 26 April 2018 that it
had ratified the United Patent Court Agreement. The Unified
Patent Court (UPC) will allow European patents to be litigated in a
single court proceeding, rather than in multiple cases in the
various countries in which it is validated, as is currently the
case. The proposed new system will also allow patent
applicants to elect for future European patents to take effect in
the participating European countries as a unitary patent.
For the UPC Agreement to come into effect it must be ratified by at
least 13 participating countries, including the UK, France and
Germany. French ratification took place fairly early on and
the 13 country threshold has also been passed. There was
considerable uncertainty, following the UK's "Brexit"
referendum on EU membership and the decision to leave the EU,
whether the UK would ratify the UPC Agreement at all, given that,
although the UPC Agreement itself is an international agreement,
the project has been an EU initiative and the unitary patent itself
is established by an EU Regulation. That uncertainty has now
been dispelled by the UK's confirmation that it has ratified
the Agreement. All eyes will now be on Germany, where
ratification has been held up by a constitutional complaint, due to
be heard in the course of 2018.
If the German Constitutional Court rejects the complaint, as many
commentators expect, and Germany completes its ratification
process, the UPC will come into operation four months later.
It will be the biggest development in the European patent sphere
for over 40 years. The UPC is largely supported by industry
and promises to boost the IP and legal sectors in the UK, as the UK
will be hosting the branch of the UPC Central Division that will
have jurisdiction over cases concerning patents in the life
sciences, medical device and chemical sectors.
There is a further question as to whether the UK will continue to
participate in the UPC following Brexit. The prevailing mood
amongst the participating countries is that it would be preferable
for the UK to remain in the system. Some amendment to the UPC
Agreement will be necessary to enable this.
Now that it is looking likely that the UPC will become a reality,
subject only to the German constitutional complaint, holders of
European patents should review their patent portfolios and
determine whether they wish to opt their European patents out of
the jurisdiction of the new court, as they will be entitled to do
for a transitional period. Litigation concerning those
opted-out patents would then be conducted, as now, in the national
courts of the participating countries. Holders of pending
European patent applications should also consider whether they
would ideally want any granted patents to take effect as unitary
patents and, if so, whether any steps can be taken to delay grant
until after the UPC system comes into operation.
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