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EU Unitary Patent: UK to ratify after all?

Despite the announcement by the UK government that the UK would commence preparations to ratify the Unified Patent Court (UPC) agreement, Steve Jones, Patent Attorney, argues that the UPC may yet go ahead without UK involvement, if it happens at all.

As has been widely reported, the proposed EU unitary patent can only – as things stand – come into effect once the necessary agreement on the Unified Patent Court (UPC) has been ratified by Germany, France and the UK. France has already ratified and Germany is expected to do so in due course. However, the vote by the British people to leave the EU (“Brexit”) threw into doubt the implementation of the new system, which only a few months ago was thought to be imminent.

Most commentators – ourselves included – felt it most unlikely that the UK would ratify the agreement prior to the UK’s departure from the EU, and that therefore the new system would be delayed, at least until that had happened (probably in 2019).

Now, however, the UK government has announced that it is indeed proceeding with preparations to ratify the UPC agreement. According to UK Minister of State for Intellectual Property, Baroness Neville Rolfe:

“The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe to develop this option.

“… for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.

“But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.”

The government will, it says, continue with preparations for ratification over the coming months, and will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible.

This announcement has been seen by many as reassurance that the UK will ratify the agreement and that the unitary patent will therefore become a reality sooner than had been feared. We are not sure that will prove to be the case. It seems to us that a promise to “continue with preparations for ratification” is not the same as a commitment that ratification will actually happen, and we remain concerned that broader political issues may yet prove an obstacle to ratification by the UK and hence to the implementation of the unitary patent.

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