On Monday in Brussels, the UK government surprisingly announced its intention to ratify the agreement on a Unified Patent Court despite the Brexit vote.
The ratification process had been stalled after UK citizens had voted in a referendum last June to leave the EU. The painstakingly agreed system for uniform patent protection in Europe (“EU patent package”) stands and falls with the ratification by the UK. Its application is subject to the condition that at least 13 of the 25 participating EU Member States ratify the agreement on a Unified Patent Court, including the three countries with the largest number of patent applications - Germany, France, and the UK.
The EU patent package, consisting of the Regulations on enhanced cooperation in the area of the creation of unitary patent protections and the applicable translation arrangements, as well as the agreement on a Unified Patent Court, provides the conditions for obtaining and enforcing EU-wide, uniform patent protection. Until now, in addition to national patent protection, patent applicants in Europe are limited to protection by the European patent. It provides for uniform application for several States, but, after its issuance, is divided into national parts, which must be individually maintained and enforced before the national courts.
In contrast, the European patent with unitary effect is designed to apply to the sovereign territories of all participating EU Member States and to be enforced before the Unified Patent Court with effect for all participating EU Member States. With the ratification that it now announced, the UK at least temporarily eliminates the need for elaborate renegotiations of the arrangements on languages, fees, and the seat of the court and its thematic sections. Following the ratification by the United Kingdom, which the German government is likely to immediately follow, it is expected that the court will be able to start its work as early as mid-2017.
It remains unclear, however, what impact an EU exit by the UK, if implemented, will have on the agreements of the EU patent package. In its current version, the agreement on a Unified Patent Court does not provide for an exit clause. To date, at least, the prevailing opinion is that participation in the unified patent dispute settlement system is open only to EU Member States.