Thursday - 20 April 2017

Further delays likely for start date of the UPC

It has been 40 years in the making and it was widely considered that the Unified Patent Court Agreement (UPCA), which builds on the success of the established European Patent Organisation and aims to simplify and streamline patent enforcement across Europe, was on the verge of realisation. The Agreement has overcome many obstacles over the past 5 years, from actions in the CJEU to challenge its legal validity, to difficult negotiations around issues such as costs, and uncertainty arising from the UK’s Brexit vote, but the decision by Theresa May on 18 April 2017 to call a general election could be the straw that finally breaks the back of the UPCA.

The Agreement requires ratification by the UK before the new pan-European system of patent enforcement can be brought into effect and the Brexit vote on 23 June 2016 was initially considered to have signalled an end for the project, but the UPCA rose again and the UK Government’s announcement in November 2016 that ratification of the Agreement would proceed led to patentees and their advisors around Europe hastening to resurrect plans to develop new patent strategies under the UPCA.

Only a small number of fairly minor procedural steps remain outstanding to enable the UK to ratify the UPC Agreement and complete our part in bringing the UPC into effect. However, these steps do require the presence of a government and it seems highly unlikely that there will now be sufficient time to complete the necessary steps before parliament is dissolved on 3 May 2017.

Furthermore, with the UPC Preparatory Committee relying on the UK being ready to ratify in May 2017 in order to establish a number of bodies necessary to prepare for the practical operation of the UPC, even pushing the UK ratification timetable out to June 2017 raises significant questions over whether it will be possible to meet the target start date of 1 December 2017.

In summary, it looks very likely that the UK general election will at the very least further delay the start date of the UPC system, and we now cannot expect it to come into existence before Spring 2018.  At worst, the UK election may push the UPC start date back to a time when significant further questions are raised over the viability of this European-conceived project in a post-Brexit Britain.

As soon as we have any further news we will circulate it.