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The UK will not be part of the Unified Patent Court (UPC)

The Unified Patent Court (UPC), which would provide for a single patent covering around 25 EU countries, has been moving slowly towards fruition over the past few years. The UPC would mean that a single patent could be maintained and enforced in all countries party to the agreement. While a single patent application can currently cover many European counties, once granted it becomes a bundle of national patents which must be maintained and enforced in individual countries. However, the need for the rules governing the UPC system to be acceptable to all countries involved has meant that the road has not been smooth, and we have previously reported on some of the delays, objections and court decisions which have upset its progress.

Now, in an unsurprising but nevertheless disappointing move, the UK has unequivocally stated that they will not be part of the UPC, despite having ratified its agreement in April 2018. As removing the primacy of EU law over British law has been one of the key tenets of Brexit, the jurisdiction of the CJEU in the UPC was, in the end, just not going to be acceptable in a post-Brexit Britain.

In a further blow to the UPC, the German Federal Constitutional Court declared last week that the law for German accession to the UPC is unconstitutional, as the Act of Approval was not passed by the Bundestag with the two thirds majority required for amendments to the German constitution.  This does not mean that Germany will not take part, but that their current ratification of the UPC agreement is void.

Taken together, these two events may have serious implications for the UPC, and we wait to see how it progresses in the future. Whatever happens with regard to the UPC however, we now know that the UK will not be part of it.

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