Unified Patent Court and Unitary Patent

16 May 2017 Updated 5 July 2017, 4 July 2and 29 Feb 2020 and 8 Jan 2021

By art 1 of an agreement dated the 19 Feb 2013 (“the UPC Agreement”) the governments of most of the other member states of the European Union including the United Kingdon agreed to set up a court common to the contracting parties for the settlement of disputes relating to European patents and European patents with unitary effect (“unitary patents”) which will be known as the Unified Patent Court (“the UPC”). A European patent is a patent granted by the European Patent Office under the European Patent Convention as opposed to a national patent granted by a national intellectual property office such as the IPO for the territory of a member state under its national patent legislation. A unitary patent will be a European patent for the territories of the states that ratify the above agreement.

The Agreement provides for the UPC to consist of a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance is to comprise a Central Division and regional and local Divisions. The Central Division is to have its seat in Paris and was to have sections in London and Munich. Sites had been confirmed for local or regional divisions in Germany, Italy, Luxembourg, Sweden and the UK. The Court of Appeal and the Registry will be in Luxembourg.

The Court was to open on the 1st day of the 4th month after 13 states including France, Germany and the UK have ratified the UPC Agreement. More than 13 states including France and the UK fulfilled that requirement and a bill to enable Germany to do so has been passed by both houses of the German parliament and is awaiting presidential assent.  The German president delayed giving his assent at the request of the German constitutional court while it considers a constitutional challenge to the legislation.

The decision of a plurality of the British electorate to withdraw from the European Union in the referendum of the 23 June 2016 and the intention of HM Government to implement that decision cast doubt on whether the Court will open at all.  In its white paper on the future relationship between the United Kingdom and the EU, the British government announced its intention of exploring the possibility of remaining a party to the UPC Agreement after the UK withdraws from the EU (see Jane Lambert Like the Curate's Egg - The White Paper on the Future Relationship between the UK and EU 18 July 2018 NIPC News).   It seemed to me unlikely that the UK could continue to participate in the UPC after it leaves the EU but that appeared to be the government's negotiating objective. On 26 April 2018, the UK ratified the UPC Agreement.

On 28 Feb 2020, the British government confirmed to Joff Wild and other journalists that "the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”   On 20 July 2020, the British government formally withdrew the UK's ratification of the UPC Agreement (see UK Withdrawal from the UPCA  UPC website 20 July 2020).

Anyone wishing to discuss this article or the UPC and unitary patent generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

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