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EU Unitary Patent: More progress but uncertainty remains

As we have previously reported, the proposed EU Unitary Patent regime, under which a single patent would take effect throughout all those EU countries that participate in the system, will come into effect once the relevant agreement has been ratified by thirteen EU Member States, provided that those States include the UK, France and Germany.

The number of ratifications has now reached nine, with Finland being the latest country to take that step. 

As the overall number of ratifications approaches the critical figure of thirteen, the issue of whether the UK will ratify the agreement, and if so when, becomes ever more crucial to implementation of the new system. The UK Government has just published a draft Statutory Instrument, which paves the way for ratification, as well as proposing various changes to UK patent law that would be necessary to accommodate the Unitary Patent. The indications are, therefore, that the UK is definitely moving towards ratification.

As before, however, we remain sceptical as to whether UK ratification will occur before the outcome of the forthcoming referendum on Britain’s continued membership of the EU is known. The Government is committed to holding that referendum before the end of 2017, though there has been recent speculation that it could take place as early as June 2016. 

If the referendum results in the UK remaining within the EU, we would expect ratification to follow promptly, and for the Unitary Patent to finally come into being within a few months.  However, as noted above, the date of the referendum is not yet known, and it could be more than one year away. If the UK votes to leave the EU, its place among those countries that must ratify the agreement would be taken by The Netherlands, but it does seem unlikely that the system could then come into effect until the UK had actually left the EU, which would not happen overnight, but would presumably take some considerable time, possibly years.

Of course, if our scepticism proves unfounded, and the UK ratifies before the referendum, then the likelihood is that that before long we will at long last indeed have the option of obtaining unitary EU patents.

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