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The European Union package includes two regulations, which would create a European Patent with unitary effect (“Unitary Patent” or “UP”), and a Unified Patent Court (“UPC”) Agreement (“UPCA”—a treaty) that would create a Unified Patent Court. The UP regulations specify that they would be effective on the same date as the UPCA on the first day of the fourth month after minimum ratification of the UPCA by 13 EU states including France, Germany and the United Kingdom.

Progress toward the EU Unitary Patent and Unified Patent Court has been stalled for two reasons. First, an individual filed a Complaint in the German Constitutional Court in 2017, seeking to block German ratification of the UPCA. A decision of that court whether to accept that Complaint, and possibly also on the merits, is currently expected in the first half of 2020. Second, the United Kingdom has left the EU on January 31, 2020 (“Brexit”) and a UK government spokesperson announced on February 27, 2020 that “the UK will not be seeking involvement in the UP/UPC system,” contrary to prior UK statements and the UK’s ratification of the UPC Agreement.

The UPCA failed to consider the need for an organizational phase before the UPC opens to receive cases. Therefore, a Protocol on the provisional application (“PPA”) of the UPC Agreement has been devised, which would permit some parts of the Agreement to be applied immediately after 13 states, including France, Germany and the UK, give notice that their Parliament has approved ratification of the Agreement. The PPA will permit organizational activities before the UPCA enters into full force and the court opens, including the recruitment of judges and staff, testing of IT systems and early registration of opt-out demands.

Therefore, a further agreement or protocol by the remaining participating EU states will be required, at least to address parts of the UPCA and the PPA referring to the UK and London, and possibly issues that may be raised by the German Constitutional Court. (See “The Effects of Brexit” below).

UPCA Ratification Status

The UPCA requires a minimum ratification by France, Germany and the United Kingdom, and at least 10 other signatory EU member states. France ratified in 2014. The minimum of ten “other states” was satisfied in 2016.

It always was intended that Germany would be the last required state to deposit its instrument of ratification, in order to control the Court’s opening date. Everything was going smoothly in Germany. UPCA ratification and the PPA had been approved by the German Parliament. Then, in April 2017, an individual filed a complaint with the German Constitutional Court, challenging German ratification and participation in the UPC on several grounds of German and EU law. Such individual challenges are common in Germany, although very few such complaints move past a preliminary review for admissibility of the complaint. Nevertheless, in June 2017, the German President halted the ratification process pending action by the Court. In an interview published on 20 November 2019, the judge-reporter responsible for the case stated that it would be decided early in 2020.

Although the UK deposited its ratification on April 26, 2018, the German Justice Ministry has indicated that Germany will not deposit its ratification until either an agreement is reached for the UK to participate in the UPC and UP system without being an EU member state, or the provisions in the UPCA referring to the UK and London are modified.

The Effects of Brexit

UPCA Article 2(b) defines “Member State” as meaning “a Member State of the European Union.” The Agreement also specifies the UK as a required EU member state and places part of the Central Division of the UPC in London.

Although the UK has ratified the UPCA, it left the EU on January 31, 2020, before the UPCA became effective, and a UK government spokesperson announced on February 27, 2020 that “the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.” Therefore, it appears that the UK will not participate in the system and that the remaining participating states will need to modify the UPCA and PPA to delete provisions referring to the UK and London.

Updated March 2, 2020.

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