In November, we reported on the UK Government’s shock announcement that it intended to proceed with the ratification of the Unified Patent Court Agreement (UPCA). It had been widely assumed that the vote for Brexit would result in the UK taking no further part in the new Unitary Patent (UP) regime. Involvement in the UP currently requires membership of the EU because the regime is governed by two EU regulations, is supervised ultimately by the Court of Justice of the European Union and requires an acknowledgment of the supremecy of EU law. All this is fundamentally at odds with Brexit. As the introduction of the Unified Patent Court (UPC) is conditional upon the ratification of the UPCA by the UK (among others), many were resigned to the fact that Brexit would either significantly delay, or even completely derail, the introduction of the UP and UPC.
However, following this clarification of the UK’s position, the UPC Preparatory Committee has released details of a new roadmap for the introduction of the UP system. It looks like the new regime could be up and running earlier than perhaps anticipated. The UPC Committee has confirmed that it is now working on the assumption that the Provisional Application Phase will start at the end of spring 2017, presumably in May, and that the UPC will open its doors in December 2017. The start of the sunrise period for the possibility to opt European patents out of the UP regime is now planned for early September 2017.
The announcement comes, as you would expect, with the disclaimer that there are a number of factors dictating whether the target dates are achievable, the most significant being whether ratification of the UPCA does, in fact, go ahead. The UK’s position is pivotal. However, given the November announcement, and the fact that the legislation amending the Patents Act 1977 to allow for the introduction of the UP and UPC has already been approved, there appears to be no reason why the UPC Committee’s target dates will not be met.
Less certain is the UK’s future in the Unitary Patent regime. In her speech on 17th January, Prime Minister Theresa May said that the UK would not seek to hold on to bits of EU membership when it leaves the EU and that, post Brexit, the UK would no longer be subject to the jurisdiction of the Court of Justice of the European Union. This would tend to signal that the UK has no long-term future in the Unitary Patent system although this seems fundamentally at odds with the UK’s intention to proceed with ratification.
Patent owners – watch this space.