On 28 November 2016 the UK government announced that it will ratify the Unified Patent Court Agreement and will work with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible. The information was given by the UK’s Intellectual Property Minister Lady Neville-Rolfe at a meeting of the EU’s Competitiveness Council.

This announcement follows after months of uncertainty since the United Kingdom voted in favour of Brexit last June. It was thought that the Brexit vote would significantly delay the implementation of the UPC and the unitary patent effect because the UK’s ratification of the UPC is an imperative step in bringing the system into force. This due to the UK being one of the three Member States that will have the highest number of European patents on the relevant date – the other two States being France (ratified) and Germany (yet to ratify).

In fact, with the UPC comes the recognition of a supranational court with the power to refer questions of law to the Court of Justice of the European Union. Therefore, and after “Brexit is Brexit”, it seems somewhat politically unjustifiable for the UK to ratify the Agreement even though the ratification is most welcome from a business perspective. As Lady Neville-Rolfe has reminded, with the new regime, British businesses “will be able to protect and enforce their patent rights across Europe in a more streamlined way”. Furthermore, it is not irrelevant that the UPC’s Central Division branch devoted to chemistry and life sciences will be located in London and is worth as much as £200m namely for the legal and IP professionals.

Waiting for Germany

As the UK ratification formalities appear to be relatively easy to conclude in the near future, Germany will in fact be the country with the power to decide if and when the UPC becomes a reality as a total of 11 countries, including France, have now ratified the Agreement and at least 13 States are necessary.

The ratification by Germany is not expected to be difficult or delayed. However the political context is evolving constantly. It is expected that the UK will trigger article 50 of the Treaty of the European Union in March 2017. Besides, Lady Neville-Rolfe has warned that “the decision to proceed with ratification should not be seen as pre-empting the UK's objectives or position in the forthcoming negotiations with the EU”. It is virtually impossible to anticipate how Brexit would be reflected in a running and stable UPC system as a lot will depend on the UK’s objectives in their negotiations with the EU, which have yet to start. Consequently the next move could very well be Germany delaying ratification until the Brexit negotiation process is unveiled. In any case 2017 will undoubtedly be a very interesting year for the future of patent law in Europe.