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The Unitary Patent - Will UK politics get in the way?

Much has been said and written in the past two years about the proposed unitary EU patent and the impact it will have. Originally predicted to come into effect in January 2014, the new system now seems unlikely to be operational before 2016 at the earliest, and even that timescale is probably unlikely.

A precondition for implementation of the unitary patent is ratification of the Agreement by thirteen EU member states. A few ratifications have occurred and more are expected. However, the magic number of thirteen countries must include Germany, France and the UK before implementation can occur.

In the UK, a general election will take place on Thursday 7 May. Our incumbent Prime Minister, David Cameron, has stated clearly that if he remains Prime Minister after the election, whether as the leader of a majority Conservative government or, as many think likely, the leader of a coalition with one or more of the smaller parties, the UK will hold a referendum on whether it should continue to be a part of the European Union. The current proposal is that such a referendum will take place in 2017. The outcome of that referendum – if it takes place – is impossible to predict, but it appears distinctly possible that it might result in the UK leaving the EU, a process that would take some time to negotiate and implement.

Against that backdrop, if Mr Cameron does indeed still lead the country after the election, which most commentators seem to think will be most likely outcome, is it conceivable that the UK government would proceed with ratification of the Agreement necessary for the unitary patent to come into being? Ratification would commit the UK to establishing an EU institution, namely a branch of the Unified Patent Court Central Division, in London. Work would have to commence on that project, with the possibility hanging over it that within a couple of years the UK might choose to exit the EU, and hence (presumably) the unitary patent system.

The impact of their vote on the prospects for the unitary patent will not be a significant factor for many voters in the UK, but it seems to us that the outcome of the election could, at best, cause a substantial delay in the process of implementation, and at worst might derail it altogether.

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