On 20 July 2020 the UK made a statement in Parliament that it had withdrawn its ratification of the Agreement on a Unified Patent Court. As noted on the Unified Patent Court website the UK also deposited a withdrawal notification with the Council Secretariat. The UPC Preparatory Committee has stated it will now discuss the consequences of the UK withdrawal and agree a way forward.

Given the UK Government’s view of the CJEU, the statement doesn’t come as a huge surprise though it will presumably be a disappointment for those UPC supporters who were holding out hope that the UK and the other participants would work out some way for the UK to stay in the system.

The UK’s withdrawal from the UPC is, of course, not the only issue to hit the unified patent court project this year as the German Constitutional Court found that the German ratification legislation was unconstitutional.

What comes next for the unitary patent project is unclear. While the system still has its supporters who continue to say that the system could go live as early as [Readers should insert today’s date plus 6-12 months] there are a number of matters that are unclear, namely:

• Is the UK’s withdrawal notification sufficient? The UPC Agreement does not have any withdrawal provisions but the Vienna Convention on the Law of Treaties does provide mechanisms for withdrawal from treaties with no withdrawal provisions. Whether the UK’s withdrawal is currently effective may be unclear however and may require amendment of the Protocol to the Agreement on the UPC on provisional application.
• Where will the London seat of the Central Division be relocated to? Although the provision governing when the UPC Agreement comes into effect does not mention the UK (see Article 89 UPCA), Article 7 which relates to the Court of First Instance does explicitly mention the UK and Annex II to the Agreement details the technical split in cases between London, Paris and Munich. Will the UPC Agreement require amendment to remove the references to London and, if not, will other interested countries (e.g. the Netherlands, Italy) be happy for the system to come into effect without first dealing with this issue?
• How attractive will the unitary patent system without the UK be for applicants? Also, will the renewal fees for the Unitary Patent need revising in light of the UK’s departure?

The UK announcement is the latest in a line of setbacks for the system. IPcopy remembers the pan-European Intellectual Property Summit way back in December 2012 where the keynote speech suggested that all the stops would be pulled out in order to allow the first unitary patent to be granted in Spring 2014(!) and yet here we are, some 6 years beyond that point, with no real end in sight for the ratification process.

Mark Richardson 8 September 2020