The United Kingdom has ratified the Unified Patent Court Agreement, but can it continue to be a member after exiting the European Union? The Chair of the court’s Preparatory Committee is optimistic; meanwhile, still no date can be forecast for the court’s opening, due to the pending appeal against Germany’s ratification law.
On 26 April 2018 the United Kingdom deposited its instrument of ratification of the Agreement on a Unified Patent Court.
The UK’s ratification is a step towards the opening of the Unified Patent Court, a supranational tribunal with jurisdiction on European patents with unitary effect (also known as “unitary patents”) and eventually on European patents in general.
According to the agreement, the court can only enter into force after ratification by France, the United Kingdom, Germany and ten other signatory countries.
So far, 16 states have ratified the agreement, but France was the only one among the three “compulsory” countries to ratify shortly after signing the agreement.
The United Kingdom’s ratification was blocked pursuant to the British government’s decision to respect the result of the referendum of 23 June 2016 in which a majority of voters opted for leaving the European Union.
Germany’s ratification is still in a state of suspension while the Federal Constitutional Court examines an appeal against the ratification law.
The United Kingdom is in the Unified Patent Court, but what about Brexit?
The deposit of the United Kingdom’s instrument of ratification of the Unified Patent Court Agreement has been announced as a positive step forward for the court. However, there are strong doubts that the United Kingdom will technically be able to continue to be a member of the Unified Patent Court after its exit from the European Union.
Articles 1 and 2 of the agreement expressly provide that only member states of the European Union can belong to the court, and in particular that the court shall be “subject to the same obligations under Union law as any national court of the Contracting Member States”
Nobody has so far explained how the conflict between these provisions and a keeping a non-member state of the European Union in the Unified Patent Court will be solved.
In the official announcement given by the British Minister for Intellectual Property, the agreement is described more than once as an “international agreement”, clearly showing the intention of no longer considering the Unified Patent Court Agreement an agreement among European Union member states.
It remains a fact, nonetheless, that participation in the agreement of a state that is not a European Union member requires an amendment of the agreement itself.
Such an amendment would nullify all the ratifications that have already been finalised with the European Commission, which would bring back to square one a ratification process that requires parliament approval in all contracting states.
It has taken over five years or just 16 states to ratify the agreement, out of a total 25 signatory states.
Alexander Ramsay, Chair of the Preparatory Committee of the Unified Patent Court, seems nonetheless to believe that changing the agreement is a viable solution.
The Financial Times has reported his comment on the news of the United Kingdom’s ratification as: “Some of the wording of the agreement will have to be amended after the UK leaves the EU but I would very much like Britain to participate in the UPC in the long term. The whole of Europe will benefit from the system having the broadest possible geographical coverage.”
It is clear, at any rate, that the United Kingdom’s permanence as a member of the Unified Patent Court after 29 March 2019 is now officially a subject of Brexit negotiations.
Germany and the Unified Patent Court: appeal against ratification law still pending
The United Kingdom’s ratification does not remove all obstacles to the Unified Patent Court’s inauguration.
The ratification of Germany is as indispensable as those of France and the United Kingdom, but Germany’s ratification law is on hold pending an appeal before the German Federal Constitutional Court.
No date for the court’s decision has been set, but it is possible that the German court will refer the case to the Court of Justice of the European Union, which would make it impossible for the appeal decision to be issued before mid-2019.
Thus, in spite of the United Kingdom’s ratification, it is still impossible at the moment to say when the Unified Patent Court Agreement will come into force.