Brexit formally started: no ratification of UPC yet

On March 29, 2017, the Brexit was formally started. It was expected that the British government would move to ratify the UPC agreement before Article 50 was triggered. Now that this has not happened, the British participation in the Unitary patent again seems uncertain.

In our earlier coverage on the Brexit and the Unitary patent (see our file on this subject) you may have read that the Britisch government communicated in November 2016 their intend to ratify the Unified Patent Court Agreement (UPCA) before the triggering of Article 50 (the 'Brexit'). The participation of the UK in this Agreement is of great importance, since the participation of the UK, together with France and Germany (which also still has to ratify), is a main condition for the entering into force of the Agreement.

Despite a confirmation of the intention to ratify by Minister Jo Johnson earlier this year and the general expectation that the ratification would take place in March, the reality is that the Brexit has now been formally started and there has been no ratification yet.

Ratification after the formal start of the Brexit is fundamentally different from ratification before the Brexit because the British government now has the opportunity to use the ratification in the negotiations regarding the Brexit. Moreover, now that the Brexit has been started, there is a need to clarify the position of the UK with respect to the Unitary patent when they leave the European Union in a few year's time. This could delay the ratification, and thus the implementation of the Unitary patent.

The Preparatory Committee has focussed on a start of the 'Provisional Application Phase' in May 2017, assuming that the UPCA would be ratified by the UK. Based on this assumption, the Unified Patent Agreement (UPCA) could enter into force in December 2017.

We now have to wait on whether the UK will still ratify. When the ratification is delayed, it becomes unlikely that the Unitary patent will be available in 2017.

Please check our website to keep up to date with the latest developments regarding the Unitary patent. Please also check our file on this subject. If you have any questions, please do not hesitate to contact one of our advisors.