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Further to a previous announcement that the UK government would not be seeking involvement in the UP/UPC system, the UK today announced its official withdrawal from the Unified Patent Court (UPC) Agreement.
The UP/UPC system is an EU initiative to establish a Unitary Patent (UP) having unitary effect throughout the EU member states, and to establish the Unified Patent Court (UPC) to hear disputes relating to the Unitary Patent, and also relating to European patents having effect in the EU member states.
The UPC agreement was signed in 2013 and ratified by the UK on 26 April 2018 by Theresa May’s government. Under the agreement, one of the central divisions of the court was to be hosted in London. The agreement was set to come into force once 13 member states including the three in which the highest number of European patents had effect in 2012 (UK, Germany and France) ratified it. Until today, only Germany needed to ratify the agreement for it to come into effect.
The UK’s official withdrawal from the UP/UPC system is indicated in the parliamentary statement to have been made for clarity regarding the UK’s status and to facilitate entry into force of the system for the remaining participating states. In this regard, there had been some debate over whether the Agreements would need to be renegotiated to account for the UK’s non-participation, leading to further delay.
The effect of this withdrawal appears to be that the UPC agreement in its present form cannot come into effect, even if ratified by Germany. Once the UK leaves the transitional arrangement with the EU at the end of 2020, it would appear that the agreement can in principle come into effect with a German ratification. However, one central division of the court will be in London, which is unlikely to be acceptable to the remaining member states. Thus, in practice a new agreement seems necessary if the EU member states wish to continue with the project.
This withdrawal comes after the German constitutional court invalidated the original passing of the UPC agreement by Germany, and the German Ministry of Justice and Consumer Protection issued a new draft UPCA approval proposal for consultation. That consultation period finished recently and the results have just been published.