The UPC and unitary patent - March 2018 Update
On 21 February details were published of cases listed to be heard by the German Federal Constitutional Court which included the complaint against Germany's participation in the UPC system which has been holding up further preparations for ratification of the Unified Patent Court Agreement (UPCA) by Germany (see the Unified Patent Court Agreement section of our UPC Hub for more detail on this). The listing of the application raises the prospect of a decision sometime in 2018 which, if in favour of Germany being able to ratify, would allow the UPC to move towards commencement, but only if the UK also ratifies. The timing of any result of the hearing will be significant: early, and the UPC may be able to get going before Brexit, late and there may be more problem with the UK being part of the UPC if it is already outside the EU by the time the UPC commences (which will only take effect on the first day of the fourth month after the month in which the last of Germany or the UK has ratified the UPCA). There is general uncertainty as to whether a non-EU member state can be part of the new system. Much will be dependent on whether the CJEU will accept such an arrangement.
The UK took a further step towards ratification by the Privy Council approving The Unified Patent Court (Immunities and Privileges) Order 2018 on 8 February 2018 which confers legal capacity and grants immunities and privileges on the Unified Patent Court and its representatives, judges, Registrar, Deputy-Registrar and staff. This needed to be approved before the UK could proceed to ratification. As yet no date has been announced for UK ratification however.
For more on ratification, including the 15 EU member states who have already ratified (Latvia being the most recent, on 11 January 2018) and the potential impact of Brexit on the new system, see the UPCA section of our website.