German Court, UK Election Could Push Back Unified Patent Court Launch

The Unified Patent Court (UPC) in Europe was previously expected to open for business in December 2017 but that timeline has now slipped.

The timetable for the start of operation relies “on the timely finalisation of national procedures concerning the ratification of the UPC Agreement and the participation in the Protocol on Provisional Application,” the UPC Preparatory Committee said on 7 June.

Several member states still need to ratify the pact, but “due to some delays with these procedures, the previously announced target date for the entry into operation of the UPC, envisaged for December 2017, cannot be maintained,” it said here.

The committee said it is monitoring the situation and will publish a new timetable “as soon as possible.”

Under the terms of the protocol, the agreement must be ratified by 13 countries including Germany and the United Kingdom. Those governments have consented to be bound by the protocol but have yet to ratify the pact. The ratifications are still likely to take place, but a challenge in Germany’s Federal Constitutional Court, and the results of the 8 June UK general election, have muddied the schedule, Bristows (UK) intellectual property attorney Manuel Rey-Alvite Villar said.

Implications of German Challenge Uncertain

The German court reportedly asked the Office of the President of the Republic on 3 April to refrain temporarily from signing the draft legislation, already approved by Parliament, needed for German ratification of the UPC agreements, Rey-Alvite Villar wrote in a 13 June note. The court’s request came in the context of a challenge to the constitutionality of the measure enabling ratification of the UPC file by an unnamed private individual (docket number 2 BVR 739/17), he said. The grounds for the challenge have not been published, he said.

“The timescales going forward are unclear,” but the court’s action doesn’t necessarily mean that additional delay to the start of the UPC is inevitable, or that there will be a ruling barring Germany from green-lighting the agreement, Rey-Alvite Villar wrote.

UK Commitment to UPC Unlikely to Waver

“We see no signs that the new political landscape is going to have any impact on the government’s plans concerning the UPC as they were prior to the election,” Rey-Alvite Villar told Intellectual Property Watch. The Conservative government is essentially the same, so there’s no reason why it would take a different position from the last government, he said.

At a 29 May meeting of the EU Competitiveness Council, the UK noted that ratification was an issue for the next government, but said Britain still intends to ratify, said Rey-Alvite Villar. “Even should there be further political twists and turns, this should not be prejudiced, because UPC ratification has not, to date, been a partisan matter,” he said.

But the final steps in the process are not likely to begin before summer recess either in the Westminster or Scottish parliaments, both of which must pass one or more pieces of legislation, Rey-Alvite Villar said. That probably will not matter, because the failure of three states to approve the start of the provisional application phase has already caused the proposed December start date to slip.

“There is no reason why UK ratification should not be completed by November,” he added. Subject to how the German challenge affects that country’s ratification process, “we could be looking at approximately a March or April 2018 start date.”

 

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