UK to ratify UPC Agreement in spite of Brexit, the court may launch in 2017

Brexit has unexpectedly froze the preparations of the UPC as it challenged one of the core requirements of the system to start, that is that the three countries with the most EP patents in the past years – that is the UK, Germany and France –  have to ratify the Agreement.

Since Brexit a few theories have circulated about possible follow up scenarios and many shared the view that Brexit would necessarily entail the UK leaving the UPC System. The guessing were however answered by the statement of UK Minister Baroness Neville-Rolfe, who declared at the EU Competitiveness Council meeting held on 28th November, that the UK continues its preparations to ratify the UPC Agreement.

The news was generally welcome by industry players as this would enable them within foreseeable time – even in 2017 – to enforce and defend their patent related rights in a unified proceeding in the EU and in the UK, which will also host the branch of the central division of the UPC responsible for pharmaceutical disputes. The launch of the court would also facilitate for individual inventors such as Mr. László Oroszi who has recently won against Adidas to obtain patent protection in Europe cheaper and to enforce patents in one proceeding in most countries of Europe.

Although the minister’s statement did not reveal plans after the actual exit of the UK, it seems logical to suppose that this important declaration at least indicates UK’s intention to stay in the UPC system after Brexit as well. Importantly, although set up by the EU the UPC Agreement is not EU law but an international agreement and the UPC (like the EPO) itself will not be an EU institution but an international court with the participation of the UK and UK patent judges.

If next to UK, Germany also completes the ratification process in a short time, it could easily mean that the first lawsuits can launch before the UPC as early as in 2017.