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December 2016

Baroness Neville-Rolfe, UK Minister of State for Business, Energy and Industrial Strategy, stated at a meeting of the EU Competitive Council on 28 November 2016 that the UK will ratify the agreement on a Unified Patent Court ("UPC"). This has ended five months of speculation about whether the UK will participate in the UPC and Unitary Patent, which ensued since the decision of the UK to leave the EU on 23 June 2016.

Despite the fact that the UPC is not itself an EU body, it had been thought that the UPC and Unitary Patent system required all participants to be EU Member States. This caused initial concerns in the UK that ratification now would allow the new system to start, but that the UK then risked being forced to leave upon Brexit. However, there have recently been a number of opinions emerging suggesting that this is a misinterpretation of the legal framework of the system and that post-Brexit participation will be relatively straightforward, technically. Furthermore, at a more political level, there had been concern from many practitioners and potential users of the system that, if the UK did not ratify, it would be left behind whilst a much diminished court, with the Unitary Patent, goes forward without it.  

With the UK now set to ratify the UPC, the branch of the central division dedicated to life sciences patents will remain in London.

The biggest question now is when the UPC and the Unitary Patent will come into force. The UPC Preparatory Committee states that it has largely completed all the work required in preparation for the Court to become fully operational. Therefore, with only the UK and German ratifications now necessary, the opening date will be considerably earlier than had been feared without the UK's participation, but not as early as had been stated before the UK referendum decision. The current best guess is towards the end of 2017, or the beginning of 2018.

Taylor Wessing has written and advised extensively on the subject of the UPC and Unitary Patent, as well as providing a series of webinars, news and practical guidance. These can be found on our UPC hub.

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