On 28 November 2016, the UK government issued a press-release wherein it confirms that it is proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA). This may be a great step forward in the establishment of the Unitary Patent package. However, this does not necessarily mean that we can expect a near future ratification by the UK of the UPCA.
For the establishment of the Unitary Patent and Unified Patent Court (Unitary Patent package), a total of 13 EU member states need to ratify the UPCA, among them France, Germany, and the UK. In the run-up to the Brexit-referendum, the UK suspended its preparations for ratification of the UPCA, thereby delaying the establishment of the Unitary Patent package.
In view of the outcome of the Brexit-referendum, many experts believed that the UK would not proceed with its preparations for ratification of the UPCA. This is because in the present setup non-EU members cannot participate in the Unitary Patent package, i.e. in the present setup, if the UK leaves the EU, the future Unitary Patent would not cover the UK and the future Unified Patent Court would have no jurisdiction in the UK.
Unexpectedly, the UK government now has confirmed it is proceeding with preparations to ratify the UPCA. This puts an end to the delay that the UK caused by suspending its preparations for ratification of the UPCA, and brings hope for a near future establishment of the Unitary Patent package.
What may have been the reasons for the UK government to change its stance?
The press-release issued by the UK government announcing the lift of the suspension of preparations for ratification points towards two reasons for the UK for proceeding with preparations.
A first reason appears to be that British businesses will benefit from the Unitary Patent package, in view of the fact that — even if the Unitary Patent package will not cover the UK — it will enable British businesses to protect and enforce their patent rights across Europe in a more streamlined and cost-efficient way, with a single patent and through a single patent court.
A second reason appears to be related to the upcoming negotiations for an agreement between the UK and the European Union (EU). Although in the press-release it is stressed that the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU, the press-release appears to imply that the lift of the suspension of preparations for ratification of the UPCA does show the UK's cooperative attitude towards the negotiations.
What will this lead to?
It cannot be predicted where the UK's confirmation that it is proceeding with preparations to ratify the UPCA will lead. In politics and negotiations, parties generally need some bargaining chips. Maybe the UK's ratification of the UPCA is such a bargaining chip in the negotiations for an agreement between the UK and the EU. In that case, the UK's ratification itself may not happen in the near future and may even never come.
On the other hand, in case the first reason — i.e. the benefit for British businesses — prevails, the UK may indeed ratify the UPCA in the near future, which would be a great step forward in the establishment of the Unitary Patent package.
We will continue to closely follow the developments of the establishment of the Unitary Patent package, and will keep informing our readers about relevant developments.
Press-release UK government: https://www.gov.uk/government/news/uk-signals-green-light-to-unified-patent-court-agreement