April 26, 2018 - The UK has ratified the UPC Agreement

The UK government confirms that the UK has ratified the Unified Patent Court Agreement (UPCA) on 26 April 2018.

Among the three major countries, France, Germany and the UK, which have to ratify the Agreement for its entry into force, there remains now only Germany, where the ratification process has been suspended, waiting for a decision of the German Constitutional Court.

If the German Court would accept to consider the arguments filed with the complaint a delay of more than 1 year could be the consequence.

If, on the contrary, the court would reject the complaint as inadmissible, without detailed study, Germany could ratify the UPC Agreement very quickly.

However, it is probable, in that case, that Germany would delay the final step of ratification of the UPCA so as to allow first entry into force of the Protocol on Provisional Application (PPA).

This Protocol, which could last 6 to 8 months, will allow the necessary administrative preparations to be made before effective entry into force of the UPCA.

It will thus be possible to create beforehand the main organs of the UPC, such as for example, the Registry, the Administrative Committee, the Advisory Committee, as well as to appoint the judges.

At the present time, only 2 Contracting Member States are failing ratification of the Protocol.

The ratification by the UK of the UPC Agreement is anyhow an important step toward the effective coming into force of the new patent court system in Europe.

What about Brexit?

The draft agreement between the UK and the EU published on 19 March 2018, provides that the UK would apply all European regulations like any other EU Member State, during a transition period ending on 31 December 2020.

It can be argued that the UK will have the possibility to remain a Contracting Member State of the UPC Agreement as it stands now, even after March 2019 and that the transition period will be used to arrive at an appropriate modification of the UPC Agreement allowing this situation to be maintained.

In any case, in view of the ratification by the UK, we recommend to prepare already now the potential changes of procedures for handling patent portfolios in Europe.

The main point is presently the possible opting out of the future Court, for existing European patents. Please see our note on this matter by clicking here.