16 December 2016

In yet another sign of the UK government’s intention to ratify the Unified Patent Court (UPC) agreement in spite of the Brexit vote; the UK has this week signed the Protocol on Privileges and Immunities of the UPC.

The decision to sign the Protocol, which provides EU privileges and immunities to UPC judges in countries hosting divisions of the court, would appear to show that the government is serious about UK ratification and, as UK IP Minister Baroness Neville-Rolfe stated, it represents another “step closer to the realisation of a new single unitary patent and Unified Patent Court”.

As a follow-on from Baroness Neville-Rolfe’s previous statement at the end of November of the UK’s intention to ratify the UPC agreement “as soon as possible”, this announcement is potentially significant. Not only does it seem to finally confirm that the UK will retain the London division of the UPC (which will serve as the life sciences seat of the central division), it also demonstrates that the UK is willing to accept EU authority and EU rights in the post-Brexit Britain when it comes to the UPC (even if this is currently only in relation to its judges).

In addition to the Protocol announcement, it was also this week confirmed that the UK IPO is working on a timetable in which the orders for ratification will be presented to parliament in February or March of 2017. This announcement confirms what many in the IP industry have suspected, that the UPC could be operational by the autumn of 2017.

This development also means that the UK IP industry will need to kick into overdrive in determining whether existing patents should opt out of the UPC system, a full 2 years before some people in the sector were expecting it to.

Of course, the signing of this agreement does not confirm that the UPC will come into existence, and the ratification process is not guaranteed to be smooth or quick. However, these announcements do bring one step close the nearly 50 year long quest to create a unitary patent system for Europe.

Commenting on the news, Partner and Patent Attorney Litigator at Potter Clarkson Tim Powell said: “Although this development does not amount to ratification of the UPC Agreement, it is an important precursor.  It appears therefore that the UK Government is in the process of making good its promise to ratify the Agreement at an early stage”.

Nick McDonald a Partner and litigator in the firm’s Dispute Resolution and Commercial team added: “it does now appear the UPC will happen and happen soon. That means there is a lot of work to do for patentees to prepare for this development, and the task of reviewing patent portfolios and licensing arrangements needs to start now.”

Potter Clarkson is a full-service IP law firm, and is able to provide advice to you on how best to prepare for the coming of the UPC, if as now expected it comes into being during the course of 2017. Please contact us here if you would like further information or would like to speak to someone at Potter Clarkson about the UPC.

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