The UK moves towards the unitary patent

On 26 April 2018 (“World IP Day”) the UK’s IP Minister Sam Gyimah announced that the UK has, at long last, ratified the Unified Patent Court (UPC) Agreement.

Why does it matter?

As we wrote about in a previous blog post, Europe is on the verge of the biggest shake up of the patent landscape in decades. The proposed unitary patent, together with its custom-built court system the Unified Patent Court, will be a brand new patent system which grants patent owners near European-wide protection as opposed to the current European Patent which grants protection only in countries the patent holder designates.

The 2016 referendum caused a major upset. The legislative framework (the UPC Agreement) which fires the starting gun on the system can not come into force unless the UK ratifies it together with the other 2 key signatories (being France and Germany) and at least 10 of the other 24 participating member states. Under the political hot lights of Brexit, it initially appeared that the UK was out and the legislative framework would need to be completely rewritten.

Despite this, the UK committed to ratifying the UPC Agreement and has, over the past two years, been putting secondary legislation into place to give legal status to the Court system, including the London-based central division of the UPC which will deal with pharma and life-sciences patents.

Germany now is the only key signatory left to ratify, but also delayed because of a challenge made to the German Federal Constitutional Court. It is hoped a decision will be handed down this summer.

On the UK’s announcement, it is expected that several of the remaining countries will now take steps ratify in anticipation of a favourable outcome in the German Constitutional Court. To date, 16 countries have ratified.

What next?

There are still some uncertainties about the UK’s continued involvement post-Brexit, in particular because it may not please “Brexiteers” who will not relish the idea that the UK will be beholden to the supremacy of a European legal system, but these concerns appears to be diminishing as industry and ministers generally see the benefits of remaining in the system.

UK ratification was an important step towards the new patent system. The UP/UPC will affect every new patent applicant AND current holders of EP patents as the new court system will have jurisdiction over old EP patents unless it is ‘opted-out’. Whether to opt-in or opt-out of the system will depend on many factors, so do speak with your usual Briffa legal advisor for more information.