The IP Minister Sam Gyimah MP has announced that the UK has today ratified the Unified Patent Court (UPC) Agreement. Whilst the UPC still cannot start unless and until the outstanding complaint to the German Federal Constitutional Court (the Bundesverfassungsgericht – “BVerfG”) is resolved in favour of the UPC system, today’s announcement paves the way for discussions to begin in earnest concerning the UK’s future (post-Brexit) participation in the UPC.
Mr Gyimah made the announcement this afternoon at the World IP Day event held by the IP Awareness Network (IPAN). The deposit of the instrument of ratification was effected by the UK’s Foreign Secretary, Boris Johnson MP, signing a document stating that the UK agrees to be bound by both the UPC Agreement and the UPC’s Protocol on Privileges and Immunities (PPI), and the Foreign & Commonwealth Office depositing this document with the EU Council’s General Secretariat. That deposit of the ‘instrument of ratification’ is required to make the ratifications effective under Article 84 UPC Agreement and Article 17 PPI. The General Secretariat will shortly record the deposits as ‘notifications’ on its websites showing the ratification status of the UPC Agreement (here) and the PPI (here). The UK is hosting in London a section of the Court’s central division (dealing with patents in pharmaceuticals and life sciences) and also a local division. The PPI will confer legal status on the Court, and certain privileges and immunities on the Court and its Registrar, judges and other staff to ensure its proper functioning.
The UK is the 16th country to ratify the UPC Agreement, the others being Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, and Sweden. As the UK, France, Germany and 10 other countries must have ratified the Agreement for it to enter into force, only Germany’s ratification is now required. The Agreement will enter into force on the first day of the fourth month after Germany deposits its instrument of ratification. However, the Agreement’s Protocol on Provisional Application (PPA) allows various provisions of the Agreement to come into force early, and in this ‘provisional application phase’ final preparations for the start of the UPC system, such as recruitment of judges, can be completed. Under Article 3, the PPA will come into force the day after France, Germany, the UK and 10 other countries have ratified, or informed the depositary that they have parliamentary approval to ratify, the Agreement; and have consented to be bound by the PPA (or by the provisional application of the relevant provisions of the Agreement). The UK fulfilled those requirements in July 2017 (reported here), and France and eight other countries (Belgium, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands and Sweden) have done so. Germany’s completion of the procedure is currently on hold due to the constitutional complaint pending in the BVerfG. Other countries, such as Bulgaria, Latvia, Lithuania and Slovenia, are close to completing the procedure. As reported here, the complaint in the BVerfG is included in this year’s list of cases. If the BVerfG dismisses the complaint by the summer, it is likely that the PPA could come into force shortly afterwards, allowing final preparations to be completed in time for the UPC to open in early 2019 (or at least pre-Brexit).
The PPI will enter into force 30 days after the last of Luxembourg, France, Germany and the UK have deposited their instruments of ratification, approval or accession with the EU Council’s General Secretariat (Article 18 PPI). Luxembourg, which is hosting the UPC’s Court of Appeal and Registry, deposited its instrument of approval on 3 April 2018 and France, which is hosting in Paris the seat of the UPC’s central division, deposited its instrument of ratification on 14 February 2018. Therefore, only Germany, which is hosting in Munich the other section of the central division, must now do so; the parliament passed a draft law on 2 June 2017 enabling ratification of the PPI, but the law’s promulgation is on hold due to the case in the BVerfG.