UK finally ready for the Unified Patent Court
February 13, 2018
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Many commentators have forgotten that as long ago as May 2014 the UK Parliament passed a new Intellectual Property Act, which authorised ratification and implementation of the UPCA. Of course the Brexit referendum raised huge doubts about UK commitment to the project, but these were swept aside on 29 November 2016 with the announcement that Brexit notwithstanding, the UK would still be ratifying the UPC Agreement. At that time it was expected that this ratification would be completed within about six months.
The calling of a General Election (announced April 2017) stalled that, and by the time the election had been held, the German constitutional complaint had become public. Inevitably this meant that the urgency went out of the process. To many, progress since then has seemed painfully slow. Brexit does mean, however, that the UK Government has been more than a little busy, and it is not surprising that with complete deadlock caused by the German problem, the UK did not prioritise rapid completion of the process.
It did nonetheless very soon after the new Government was formed take the important step, in July 2017 (i.e. before the summer Parliamentary recess), of signing off on the Protocol on Provisional Application, and after the recess resumed the legislative process. This process was not quite finished before Christmas 2017 simply because of the final formality required, namely approval for an item of secondary legislation (referred to as The Unified Patent Court (Immunities and Privileges) Order) by the Privy Council – or to give it its full name, Her Majesty's Most Honourable Privy Council. This body (as its full name suggests) actually involves the Queen, and therefore meets only intermittently.
The first meeting after Christmas took place on 8 February at Buckingham Palace, and, unsurprisingly, Her Majesty and her Privy Councillors signed off on the Order (together, perhaps less significantly, but more entertainingly, with such matters as a proclamation concerning the introduction of a new 50p coin featuring the literary character, Paddington Bear) – see these minutes. Hence, the final piece of legislation has been formally passed, and is available here together with this explanatory memorandum.
Hence, the UK is at last, in a position to ratify the UPCA. Why then, some may ask, did that not follow on 9 February? The short answer is again a procedural one. Constitutional requirements mean that the UK IPO needs to collect together the relevant evidence that all legislative steps have been taken to enable ratification, and provide this to the Foreign and Commonwealth Office, which is the Government ministry responsible for this sort of thing. That ministry then has to check the evidence, prepare the formal instrument, have it signed by the Minister (Boris Johnson MP) and finally lodge it in Brussels.
If given priority, this process would normally take a very few weeks. With the continuing silence from the BVerfG in Germany, there remains no urgency. Hopefully, however, the wheels are beginning to turn on this and we may see formal ratification around Easter. At the same time, the UK will also formally ratify the Privileges and Immunities Protocol, and will actually likely be the first of the four countries required to take this step essential to the start-up of the UPC.
The others are Germany, France and Luxembourg. These last two are, it is believed, ready to do so, but have not yet taken the step, whilst Germany, of course, cannot do so unless and until the constitutional challenge is resolved in favour of the German Government.
Hence, we may very well end up in a position that the UK is the first mandatory ratifying country to complete all its processes, and be waiting for everyone else to do the same. Perhaps then the doubters will finally accept that the UK is committed to the new regime – as it has been all along – and we can get on with the important task of making sure the UK can continue in the system post-Brexit. After all, this is what the vast majority of users throughout Europe want to see.
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Concerned observer
Alan, It is of course possible that Boris Johnson will hesitate to ratify an agreement that includes the following Recital: "RECALLING the obligations of the Contracting Member States under the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), including the obligation of sincere cooperation as set out in Article 4(3) TEU and the obligation to ensure through the Unified Patent Court the full application of, and respect for, Union law in their respective territories and the judicial protection of an individual's rights under that law". There is also the matter of whether Boris will be happy to bring into effect a court that will have jurisdiction over disputes involving UK (patent and SPC) rights but that, under Article 20 UPCA, is obliged to "apply Union law in its entirety" and "respect its primacy". To my knowledge, no one has yet demonstrated a plausible (and workable) way in which the UK can leave the single market, the customs union and the jurisdiction of the CJEU but yet: (1) agree to be bound by the CJEU's rulings on patent and SPC matters; and (2) adopt, in a manner sufficiently binding to satisfy the CJEU, the numerous current (and potential future) EU laws that could have any bearing on cases before the UPC. Therefore, before ratifying the UPCA, do you think that Boris is likely to want to satisfy himself that doing so will not give rise to obligations that are incompatible with the government's current plans for Brexit?
Yet another round of niceties
What an enthusiastic prose when one considers that the UPC has not yet been ratified! It is interesting to see that the PPI has been approved, but we are not yet at the end of the way. Ratification is not yet achieved, and entry into force of the UPC before the Brexit is anything but certain. Even if UK ratifies the UPC before the actual Brexit, and even if the German Federal Constitutional Court (GFCC) gives it go-ahead for the ratification and Germany ratifies before then, the stay of UK in the UPC after the Brexit is still not guaranteed. There are a lot of ifs, but barely a word about them in the long blog. Even if "the vast majority of users throughout Europe want to see" continued participation of UK in the UPC, this hurdle is by no way taken. At the moment post- Brexit UK participation in the UPC is anything but certain. It seems clear that the UPC is not a court within the judiciary system of the EU member states. How a court, even residing in a member state of the UPC, but not in a member state of the EU will be allowed to bring prejudicial questions to the CJEU. How is post-Brexit participation of the UK in the UPC possible? What about post-Brexit liability for damage caused by infringements of Union law by the UK? What about post-Brexit enforcement in UK of decisions of the UPC taken outside the UK and vice-versa? Only once those questions will have been answered in a factual and legally sound as well as convincing manner we will be in a position to agree that post-Brexit participation of the UK in the UPC is more than wishful thinking and auto-suggestion. It is nice to be informed of any little straw you might want to hang on, but a bit more seriousness in the presentation of facts would not hurt. Techrigts: FINGERS OFF! You are intelligent enough to know what it means: directly and indirectly, even by a mere link (as recently done).
Peter Parker
I do not think that Boris or Jo Johnson have a mandate to examine whether the UPCA legislation is compatible with their personal views after the proposed legislation went through the legislative process.
Joff Wild
The Brexit hardliners already tried to make the UPC a big issue in the UK. They failed. The issue is too technical and too obscure for anyone to hang their political hat on it: http://www.iam-media.com/Blog/Detail.aspx?g=79745c30-2cb8-48e9-86f9-af70bc14ea64 https://www.parliament.uk/edm/2016-17/940 The UPC's fate will be decided in Germany, not the UK.