Fri 25th May 2018

UK ratification of United Patent Court Agreement formally recognised

The UK has recently ratified the Unified Patent Court Agreement (UPCA) and the Protocol on Privileges and Immunities (PPI). Olaf Ungerer discusses the the impact that this will have on Brexit negotiations.

unified_patent_court_agreementThe website of the Council of the European Union now indicates that the instrument of ratification and the PPI have both been deposited with the General Secretariat of the Council.


On 27 April 2018, the UPC Preparatory Committee also posted a Ratification Update acknowledging the UK’s announcement and summarising other recent ratifications of the PPI and the UPC Agreement. The Committee acknowledged that there were further steps before the Provisional Application Phase could begin and furtherance of the project would be dependent on the outcome of the court proceedings in Germany. Further updates will be added to the UPC Preparatory Committee website as and when progress is made.


UK ratification / Brexit impact

The following information is based on a presentation given by Margot Fröhlinger (EPO) during the EPLIT meeting of May 14th in Milan.


The UK has meanwhile ratified the UPCA. The reservation concerning Art. 4 UPCA is of no relevance, as the accompanying protocol on immunity is now in force.


After Brexit on 30th of March 2019, there will be a transition period lasting until the end of 2020 (which can be extended) during which the EU law will continue to apply in the UK.


As the UPCA currently applies to members of the EU only, an enhancement will need to be negotiated between the UK and the other member states to the end that EU law applies to the UK in connection with the UPCA and the EU will need to agree that the UK can continue after the transition period. Important EU member states have already indicated that they would welcome such a solution.


Constitutional complaint in Germany

Now there only remains the ratification in Germany. Allegedly, the UK ratifying has put some pressure on the constitutional court and they indicated that the decision will be made during the second half of 2018. All German constitution law experts come to the conclusion that the complaint should be rejected as inadmissible.


Thus, the UPCA should enter into force in 2019!


The location of a central division in London should not be a problem, as long as the UK remains a member of the UPCA, as the UPC is not an EU institution.

This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis. Please note that the law may have changed since the day this was first published in May 2018.


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