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Will the Unified Patent Court see the light of day?

An article published on LinkedIn in 2017.

June 23, 2016. BREXIT.

November 28, 2016. During a meeting of the EU Competitiveness Council, Baroness Neville-Rolfe, the UK Minister of State for Intellectual Property, announced that the UK was proceeding with the preparations towards ratifying the Unified Patent Court Agreement (UPCA). This is supposed to mean that the UPCA could enter into force before the UK effectively leaves the European Union, following the result of the referendum of June 23, 2016.

January 16, 2017. The UPC Preparatory Committee has announced this: « The Preparatory Committee is now working under the assumption that the Provisional Application Phase (PAP) will start end of spring 2017, presumably in May, and that the Agreement on the Unified Patent Court (UPCA) can enter into force and the Court become operational in December 2017« .

However, an effective BREXIT requires the triggering of Article 50 of the EU Treaty. Negotiations between the UK and the EU may last at least two years after the triggering of Article 50. Moreover, if there are namely already now the required number of countries having ratified the Agreement, there is a last prerequisite for the entry into force: the ratification by Germany.

So, could we (reasonably) assert today that the UPC will be see the light of day in December 2017?

Nothing seems less certain. In any case, two major obstacles stand in the way.

First, a political obstacle. The German authorities have for the time being retained a strict position against the BREXIT. The idea of ​reconciling the end of the free movement of persons with a single market is strictly rejected. An exit from Europe would then involve a pure and simple exit from the single market. The proposed Patent Court is linked to the single market. In these circumstances it seems difficult to believe that the German authorities will wish to ratify an agreement for the single market, with one out of three local divisions based in London. Yet Germany has still not ratified the Agreement.

Then there is a legal obstacle. The Agreement provides that the jurisdiction to be established will be integrated into the European legal system. This implies, notably, that the ECJ will have jurisdiction (and yet Downing Street has strictly rejected the supremacy of ECJ).

Consequently, these two obstacles stand in the face of a blindness thrown by the attitude of the UK Government. It is impossible today to say that the UPC will see the light of day by December 2017. The only will of the UK Government is insufficient to make it happen. To assert the contrary constitutes an unfair deceit intended for customers who would now like to start new procedures in Europe.

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