The United Kingdom government ratified the Unified Patent Court Agreement on 26th April 2018, moving the long-planned pan-European patent and court system closer to implementation. The system cannot take effect until all of United Kingdom, France and Germany ratify the Agreement, a step which has now been completed by both United Kingdom and France.

In Germany, the country’s progress towards ratification is on hold while the Federal Constitutional Court of Germany considers a complaint that the UPC Agreement and the process of its approval by the German parliament was not in accordance with the constitution. The case is scheduled to be heard during 2018 and, if a decision is reached that the complaint is not well-founded, German ratification could be completed rapidly. A pre-implementation period would then begin immediately, with full implementation taking place a few months later.

The final hurdle facing the implementation of the new system is whether the process can be completed before the UK exits the European Union on 29 March 2019. As noted above, the UPC Agreement, as currently worded, requires that the UK, France and Germany, as EU member states, ratify the Agreement for it to take effect. Once the UK ceases to be an EU member state, it is not possible for the Agreement in its current form to become effective. It is clear that, when the Agreement was signed in 2013, it was effectively unthinkable that any major state would leave the EU.

With the UK now having ratified the Agreement, the clock is therefore ticking on the German constitutional challenge being concluded in time for the system to take effect before Brexit. It seems unlikely that the UK’s conclusion of the process has been completed without discussion with the German government, perhaps hinting that a decision by the German constitutional court can be expected within the next few months.

Our most recent update providing information on the new Court and the pros and cons of opting out can be found here. If you would like our assistance in preparing your IP strategy for the new system, assuming it does indeed take effect in 2019, please contact your usual Greaves Brewster attorney, or Rhiannon Turner.