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The Unified Patent Court and the Unitary Patent

Navigating the new EU patent system


Ratification of the UPC Agreement by Germany continues to be held up by constitutional court case and Brexit

As those with an interest in patents will be aware, the Unified Patent Court is still not a reality. The final ratification of the Unified Patent Court Agreement ("UPCA") required for the agreement to come into effect, is that of Germany (over 13 states having ratified including the UK and France, which, along with Germany, were the three states which were required to have ratified along with at least ten more, before the UPCA could come into force – see here for ratification details). Without the UPC established to enforce them, unitary patents cannot be granted.  Germany's ratification has yet to be received. 

The outcome is still awaited of the constitutional case objecting to a ratification of the UPCA by Germany, which was listed for this year (2019) but which has yet to be heard.  It is generally thought that the German court is likely to reject the objector's case, but only once this is determined can the German government make a decision on whether to ratify the UPCA. Indications are that all administrative preparation to ratify had been made in readiness, however the issue of Brexit is also key. In a response to a recent Brief Enquiry, the Federal Government stated that the consequences of Brexit were as yet unknown (and by implication were delaying ratification), but also reasserted the current Federal Government's commitment to the unitary patent and UPC project.

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The Unified Patent Court (UPC) and the Unitary Patent (UP)

Now the UK has ratified the UPC Agreement and more than 12 other Contracting states have also ratified, Germany's ratification is all that stands in the way of the UPC becoming a reality.