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Despite the result of the referendum in the UK, it would appear that technical preparations for the Unified Patent Court are going to continue.
The UK’s ratification of the Unified Patent Court Agreement is a required step in bringing the unitary patent system into play. Without the UK’s participation the remaining members of the project are faced with either waiting for the UK to leave the EU (which appears to be at least 2.5 years away now) or renegotiating the UPC Agreement to remove the UK.
However, in a joint statement from the Chairmen of the UPC Preparatory Committee and the EPO Select Committee dealing with the Unitary Patent it is noted that “it is too early to assess what the impact of this vote [the Referendum] on the Unified Patent Court and the Unitary Patent Protection eventually could be”. The statement ends with the Preparatory and Select Committees stating that “work dedicated to the technical implementation should continue to progress as envisaged.”
So for now it appears that the unitary patent project will keep steaming on despite the uncertainty the UK Referendum result has introduced into proceedings.
The Preparatory Committee met on 30th June in Stockholm where they toured the regional division of the UPC (photos). Updates to the Rules of Procedure were agreed at the meeting as a result of the agreement on court fees and the Code of Conduct for representatives. A draft budget for the UPC was also agreed.
At a separate meeting (margins of COREPER I) on 29th June in Brussels the Protocol on Privileges and Immunities was signed by representatives of some member states (France, Germany and Luxembourg).
Anyone wondering if it’s possible for the UK to stay part of the unitary patent system despite previous suggestions that it is a club for EU members only are invited to seek out one of the articles online that discuss how it might be possible to keep the UK as part of the unitary patent arrangements (see IPKat here, Kluwer blog here; and Eplaw here). While interesting, these “solutions” to the Brexit problem would seem to throw up more questions than they answer but, who knows, stranger things have certainly happened in the last week and a half…
Mark Richardson 6 July 2016
*For those of you still reading(!), “KBO” (or “Keep buggering on”) was a maxim of Winston Churchill (“We must just KBO”) see http://www.winstonchurchill.org/the-life-of-churchill/life/414-churchill-leader-and-statesman
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Art. 18.1 of the Protocol expressly requires the ratification of the United Kingdom (I believe it is the first time we read the words “United Kingdom” in a UPC/UP text).
Why ?
The protocol needs to be signed by the UK (hardcoded in the agreement indeed) as one of the locations of the Central Division (which is not in the UPC Agreement text, but London is named in the annex of course).
The agreement is actually signed by many more than 3. See the NLDutch and depositary (EU) sites.
Talking about steaming on: AFTER the Brexit vote, the Dutch Senate approved the UPC Agreement without vote and without debate (and thus without asking any questions regarding the consequences of Brexit). Thus the Netherlands are virtually in a position to deposit their instrument of ratification now (royal assent and publication are the only remaining formal requirements).