On World Intellectual Property Day, the UK ratified the Unified Patent Court (UPC) Agreement.
This was seen as a surprising move given the existing political uncertainty around Brexit.
Enough countries have now ratified the UPC agreement that the Unitary Patent (UP) and Unified Patent Court (UPC) systems can come into effect once Germany completes its own ratification procedures. However, there is a case currently pending in the German Federal Constitutional Court concerning the legality of the Agreement, and German ratification has been suspended until the case has been resolved. But once Germany ratifies the UP system, it can come into effect after a Provisional Application Phase.
The UPC will be a court common to all Contracting Member States and thus part of their judicial system. It will have exclusive competence in respect of “classical” European Patents and European Patents which have unitary effect.
The UK could still reach agreement with the EU to remain part of both the Unitary Patent and the Unified Patent Court. That would depend on a deal being agreed as part of the Brexit negotiations.
However, even if the UK eventually ends up outside of both agreements, the process of securing patents in Europe will be unchanged in substance. The European Patent Office will continue to grant European Patents. After grant, the European Patent will still be converted via an administrative process to provide a bundle of national rights, as it is today. At that stage the patentee can choose to obtain a Unitary Patent and can also choose to obtain national patents in each of the other countries as well. Those “other countries” would include the UK if it remains outside of the new Unitary Patent system.
As UK based attorneys, we will remain able to act before the EPO and will be able to secure rights for clients in respect of Unitary Patent and also for other countries in the normal manner.
We are watching developments closely and will report further once the situation becomes clearer. In the meantime, please do contact us if you would like any advice on how to develop your IP strategy.