The future of the Unitary Patent Agreement (UPA) and the Unified Patent Court (UPC) is now uncertain.

If the UPC comes into effect, for the UPA contracting states Patentees will have the option of validating a European Patent as a single Unitary Patent for the purposes of infringement, validity and ownership. Existing European Patents validated in UPA contracting states will become subject to the jurisdiction of the UPC unless they are opted out of the new system.

Whilst the UK is still part of the EU, the UPC can only come into effect if ratified by the UK, France and Germany. If the UK Government has not ratified the UPC before the UK leaves the EU, then the UPC will come into effect if ratified by Italy, France and Germany.

The UK Government has just about completed the work to enable ratification. At a recent conference of key stakeholders, there was strong support for the UPC to press ahead, despite Brexit. However, ratification of the UPC may well be a low priority for a UK Government dealing with the very many Brexit-related issues and currently it seems unlikely that the UPC will come into effect in 2017.

Despite the likely delay and uncertainty surrounding whether or not the UK will be in the UPC, Patent owners should be considering what effect the UPC may have on any existing Agreements relating to Patents such as licences and should be deciding their approach to the UPC, possibly in consultation with existing licensees. An additional factor that needs to be borne in mind after the referendum is that, if the UK is not in the UPC and the current renewal fee proposal is retained, then the renewals cost benefit analysis of the UPC may be less favourable.

Will Brexit result in a delay to the Unitary Patent Agreement (UPA) and the Unified Patent Court (UPC)?