On 26 April 2018, World IP Day, the UK surprised more than a few people by ratifying the UPC Agreement and in the process taking the total number of countries who have ratified the agreement to 16. The UK press release that accompanied this announcement stated “Our ratification brings the international court one step closer to reality”.

Since the ratification process only requires 13 member states, including France, Germany and the UK, to ratify then it might appear to some that German ratification is the only remaining obstacle to the unitary patent system going live.

However, IPcopy suggests that it is still too soon to be able to say if and when the system will come into force.

The situation in Germany is of course uncertain due to the pending constitutional court challenge. Since this was filed in June 2017 there have been relatively few updates. The case is scheduled (see our earlier article here) in the list of court business for 2018 but it is unclear when a decision will be reached. Further, if the case is not dismissed this year but a hearing is scheduled then this could push the matter into 2019.

The delay caused by the German court challenge is important because the Preparatory Committee themselves (see here) have stated that they need a Provisional Application phase of between 6-8 months before the Court is ready to be operational. Working backwards from 29 March 2019, for the unitary patent system to become operational before Brexit, then the latest the Provisional Application phase can start is somewhere between July and September this year. That does not leave much time to resolve the German court challenge before the Brexit clock runs out.

However, even if the German court challenge is resolved in the next few weeks, would Germany want to ratify the UPC Agreement before the UK’s position in the system post-Brexit is resolved? It would seem to be somewhat gung ho for Germany to ratify while there are uncertainties that haven’t been addressed.

If somehow the unitary patent system comes into force before Brexit occurs there are also questions to be answered about the mechanism by which the UK could continue to participate. CJEU Opinion 1/09 had, until the Gordon and Pascoe opinion, been regarded as a significant stumbling block for  non-EU member state participation in the UPC. The Gordon and Pascoe opinion argues that the CJEU opinion is not an insurmountable problem but it certainly would require further amendment of the UPC Agreement and other agreements to resolve this issue. If the unitary patent system starts with the UK in the system then these issues would all need to be addressed pretty quickly, presumably by the end of the transition period on 31 December 2020. That might seem a long way off but look at the relative lack of progress that’s been made on Brexit since the referendum….

Many have focused on the political goodwill that wants to see the UK stay part of the unitary patent system. However, even if that goodwill is there, and isn’t vaporised by the Brexit process, will anyone want to use the system until such time as the CJEU has had a chance to review whatever string and sticky tape has been used to keep things together and approved the UK’s continued participation?

World IP Day may have seen the UK help the unitary patent system take another step towards being operational but there seem to be plenty more obstacles to negotiate before the doors to the Court can finally open.

Mark Richardson 22 May 2018