22 juni 2017

Unitary patent package: further delay

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 Unified Patent Court Agreement (UPCA), among them France, Germany, and the UK. Until now 12 EU member states have ratified the UPCA, including France. Therefore, if Germany and the UK now ratify the UPCA, the establishment of the Unitary Patent package is a fact.

However, recent developments in both the UK and Germany appear likely to result in further delays in ratification the UPCA and therewith further delay in establishment of the Unitary Patent package.

Developments in the UK

In the UK, the Brexit made ratification of the UPCA very uncertain. 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. After the outcome of the Brexit-referendum, the UK government surprised the IP community by confirming that it was proceeding with preparations to ratify the UPCA regardless. In our previous newsletter no. 19 we speculated about the reasons for this unexpected confirmation.

Whatever the reasons may have been, the UK has not ratified the UPCA yet. Now that the current UK government lost its majority in the UK parliament after the election of 8 June, and now that the Brexit negotiations have started, it is unlikely that the ratification of the UPCA is high on the list of priorities. Therefore, ratification any time soon appears unrealistic.

Developments in Germany

Although Germany has not yet ratified the UPCA, until recently there was very little doubt that it would. However, recent developments in Germany have unexpectedly put ratification of the UPCA by Germany into question.

On 13 June, the German newspaper "Frankfurter Allgemeine" reported that the German Constitutional Court requested the President of Germany not to proceed with the ratification of the UPCA, which has already been approved by the German Parliament (Bundestag) and the German Federal Council (Bundesrat). The request appears to be a request for a stay of the ratification pending the consideration by the German Constitutional Court of a complaint that was filed by a private person.

The content of the complaint is not yet publicly available. However, based on reactions to this news on IP blogs, the consensus seems to be that the German Constitutional Court would not have made the request if the complaint were entirely without merit. In view thereof, ratification of the UPCA by Germany seems to not only have been delayed, but may even have been put into serious question.

What will this lead to?

It cannot be predicted where the recent developments in the UK and Germany will lead. We can be certain though that these developments will further delay 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.

Article Frankfurter Allgemeine