WIREDGOV

The UK Government’s ratification of the Unified Patent Court brings the new Court one step closer to reality.

After months of uncertainty as to the intentions of the UK Government, Sam Gyimah MP, Minister for Intellectual Property confirmed on 26 April that the UK has ratified the Unified Patent Court Agreement (UPCA).

The Government first indicated it would ratify the UPCA back in November 2016, however there had been no further confirmation on timing of ratification until now, leading to concerns about the Governments intentions.

The UK’s ratification is something techUK has long called for and a positive development. The Unified Patent Court (UPC), and the Unitary Patent (UP) is now closer to realisation than it has ever been before, with 16 signatories to the UPCA having ratified the agreement. 

The UPC will create a single patent, and enforcement mechanisms, across participating states. This offers greater protection to tech businesses looking to protect their IP in multiple countries and will provide a real boost to the tech industry. Continued UK participation in this international agreement would signal its intention to be an outward looking country and allow it to continue to exercise influence internationally.

The UK’s ratification not only secures UK participation, but also bring the UPCA closer to reality.  This is because, in order to come into being, the UPCA must be ratified by at least 13 Member States (which has been achieved) but it must also be ratified by the three largest patenting nations: France, Germany and the UK. France ratified the agreement in 2014, meaning only German ratification is preventing the commencement of the court’s provisional application phase. There is currently a constitutional court challenge to the UPCA in Germany which is preventing ratification. It is not clear when this will be resolved.

The decision by the UK to ratify is also significant because of its implications for the Brexit negotiations.  It is important to note that despite being made up of EU Member States, the UPC is not a European Union institution, and is administered by the European Patent Office, whose total membership is wider than the 28 EU Member States. However, whilst not an EU institution, the Court of Justice of the European Union (ECJ) has ultimate jurisdiction and the UPC will make references to the ECJ for matters relating to EU law. The relationship between the UK and the UPC post-Brexit will be subject to negotiations, but the decision to ratify now suggests the UK is prepared to make a longer term commitment to involvement.  How this works while maintaining the Government’s stated red line on the ECJ is not yet clear, but it seems unlikely that they would be prepared to ratify now only to have to withdraw from the agreement in just a few years’ time when we leave the EU. 

techUK has always been clear that if the UK ratifies the UPC it would want the UK to then remain in the agreement long term. In order to keep the UK in the UPC post-Brexit there will likely need to be changes made to the UPCA which will have to be agreed by participating countries.

However, it remains positive that the UK Government is willing to have those conversations and techUK hopes this decision is one that solidifies the UK’s place in the UPC and as a critical player in the protection and enforcement of patents internationally.