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UPC update: “U” for uncertainty
Previously, the main obstacle to implementation of the Unified Patent Court and Unitary Patent system was the ratification of the UPC Agreement by Germany: German ratification was significantly delayed by a pending case at the German Constitutional Court which is scheduled for decision later in 2019. However, even if the decision of the German Constitutional Court permits German ratification of the UPC Agreement, the German Federal Government has indicated that it does not intend to ratify until the consequences of Brexit are understood. This means that the UPC Agreement is unlikely to come into force until after Brexit, which leads to considerable uncertainty for the Unified Patent Court, both in terms of timescales and at a more fundamental level.
Following the results of the UK General Election on 12 December 2019, it is highly likely that the UK will leave the EU in January 2020. Previously, the UK ratified the UPC Agreement, indicating an intention to be part of the Unified Patent Court and Unitary Patent system when it comes into force. However, signatories to the UPC Agreement are required to be EU member states, so it is currently unclear how the UK’s participation in the Unified Patent Court will be achieved after Brexit without requiring revisions to the UPC Agreement. Therefore, in light of an imminent Brexit, there are likely to be significant delays in terms of implementation of the UPC.