November UPC Update
7 November 2017
In June we gave an update on the progress of the UPC, including the announcement by the UPC Preparatory Committee that the 1 December 2017 start date could not be maintained. We reported on the need for ratification of the UPC Agreement, as well as the UPC Protocol on Provisional Application (the Protocol), by a number of states including the UK and Germany, which are mandatory signatories along with France.
The UK has recently drawn closer to ratification as a result of the International Organisations (Immunities and Privileges) (Scotland) Amendment (No 2) Order 2017 being approved by the Scottish Parliament on 25 October 2017. This order will confer certain privileges and immunities on the UPC and its judges and other staff. As we have reported on previously, the equivalent statutory instrument, the Unified Patents Court (Immunities and Privileges Order) 2017 was laid before the House of Commons on 26 June 2017 and is awaiting approval by both chambers of the Westminster parliament. Before this can occur, it must pass through three committees: the Joint Committee on Statutory Instruments (JCSI), the Secondary Legislation Scrutiny Committee and the Delegated Legislation Committee. The members of the JCSI were recently re-appointed (on 31 October 2017), following its dissolution prior to the general election in June this year. It is now up to the JCSI to report on any instance where legislative power has been exceeded or the drafting of the order is defective or requires further explanation.
There has been some delay to the German ratification of the UPCA, owing to a case pending before the German Federal Constitutional Court (FCC) regarding the law passed by German Parliament on its implementation. The German court has asked for observations on the case and had previously set a deadline for any comment by end of October 2017 – though it has been reported that this has now been extended to the end of the year. The FCC will then determine whether or not to dismiss the complaint, a process which is expected to take until at least April 2018. If the complaint is dismissed, Germany will be able to ratify the UPCA soon after. There has, however, been talk of the possibility of the case being referred to the Court of Justice of the EU (CJEU), which would cause substantial delay to the case being decided and ultimately to Germany's ratification.
Overall, according to the latest update on the UPC website, published on 21 September 2017, while good progress has been made, "[i]t is now difficult to predict any timeline".