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British and European Patent and Trade Mark Attorneys

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UK ready for the Unified Patent Court

Posted by in Patents
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On 8 February 2018, the final legislation needed for the UK to be ready for the Unified Patent Court was passed.  The Queen and her Privy Councillors signed off the Order which is available here together with this explanatory memorandum.

This now means that the UK's Foreign and Commonwealth Office can prepare the formal instrument, have it signed by the Minister and lodge its ratification.

The UK's ratification process normally takes a few weeks and should now be a mere formality.  It is expected that the UK will also formally ratify the Privileges and Immunities Protocol, also required to start up the Unified Patent Court.  At a procedural level, building of a new venue for the London part of the Court is underway and progress is also being made to finalise the online case management system which will be used for filing and submissions on matters across all of the UPC courts.

With the UK legally ready for the Unified Patent Court, eyes now turn to Germany where its Federal Constitutional Court (FCC)  is considering a constitutional complaint against the compatability of the UPCA, the agreement implementing the Unified Patent Court. The Federal Constitutional Court invited observations from a large number of third-parties representing German lawyers, government and industry.  Many of these third parties have argued that the complaint should be found inadmissible or else declared unfounded if it is decided to be admissible. 

Williams Powell's view is that the Unified Patent Court is an extremely worthwhile project that will benefit everyone by simplifying and reducing the cost of European patent litigation.  In our opinion, the arguments made in the German constitutional complaint could be equally raised against the existing system of centralised grant/opposition at the European Patent Office followed by litigation at a national level.  This system has been serving businesses in protecting their IP in Europe since the 1970s and has not to our knowledge been argued to be consitiutionally incompatible with national laws.

As to Brexit, the UK Government announced in November 2016 that the UK would ratify the Unified Patent Court agreement irrespective of Brexit and it will shortly do so. The UPCA is not a law of the European Union but is a separate legal agreement made between most of the EU member states.  In fact, only 25 of the EU member states have agreed to be a part of the UPCA.  Once Brexit occurs, potentially after the intended transition period, it will be necessary to change the UPCA to take into account the fact that the UK will no longer be an EU member state and for the UK to remain bound to its provisions.  Given that the UK is one of the principal supporters of the UPCA and will be the base for one of the Central Divisions of the European Patent Court, the UPCA will not be able to continue in its current format without the UK.

As explained in this article (Brexit to have no effect on UK’s dealings with the EPO), the UK's participation in the existing European patent system, operated by the European Patent Office which is not part of the EU, will be unaffected by Brexit and business and patent attorneys in the UK, Europe and the rest of the world are keen to see the UK's continued involvement in the Unified Patent Court so that the full value of the centralised courts and procedures can be achieved.

Jonathan is a British and European Patent Attorney. He studied Cybernetics with Computer Science at Reading University. He is also a Chartered IT Professional and is a member of the BCS, the Chartered Institute for IT. He is active in promoting IP awareness in IT companies and spends much of his time dealing with both IP for IT and technical IT issues.