Where does the Unitary Patent stand in 2018?

January 3, 2018

The year 2017 was a turbulent one for the Unitary Patent and its Unified Patent Court. Even though the number of ratified countries stands at 14, the actual start of the Unitary system seems a lot further away than it did a year ago.

In September Lithuania was the 14th country to ratify the UPC Agreement, meaning that the minimal amount of countries required to make the agreement come into effect (13) has been exceeded. The wait, however, is for Germany and Great Britain, two countries that have to be part of the ratified countries before the Unitary Patent system can actually come to life.

Interactive Map
This interactive map gives an overview of the countries participating in the Unitary Patent, the countries that have ratified the UPC Agreement and the likely locations of the Unified Patent Courts. Click on countries to find more information.

Last year the biggest blow to the progress of starting the UPC agreement came from Germany. Seemingly out of nowhere a complaint was filed at the German Constitutional Court, claiming that the law system behind the Unified Patent Court is in conflict with the German constitution.

Currently the case is still pending. The Court revealed four aspects to this claim and relevant institutions, such as the EPO and the German Lawyer’s Association, had until the 31st of December to send in submissions on the matter.

Now the Court is to decide on the admissibility of the claim. If deemed valid, the case will go to court. According to experts, this could mean that no ruling on the matter will be seen until 2020.

Great Britain
Great Britain’s timeline cannot be understood without taking Germany’s delays into account. Even though Great Britain seems close to ratification (the Privy Council will most likely approve the draft Order needed to ratify the UPC Agreement early 2018), this will be of no use if Germany does not ratify on time. The Brexit is to become official in 2019. Ratifying and participating in the agreement after that, will be a lot more complicated for Great Britain.

At the same time, the question is raised if Great Britain should participate in such a ‘European’ cooperation if Britain is to leave the EU. Even though the agreement officially is a cooperation between countries, and not an EU initiative, the EU-feel to it can clearly be sensed and the ratification has been a part of the Brexit negotiations. One of the outcomes of this might be that the division of the UPC Court that was supposed to be hosted by London, will be moved. Milan has already presented itself as a willing alternative. Or, in the most extreme scenario, the outcome can be that the UK will not ratify at all.

Preparatory Committee
As a result of these setbacks, the Preparatory Committee had to admit at the end of the year that it is incapable of setting a timeline for when all necessary countries will have ratified the UPC Agreement and the Court can come into effect.

The delay not only means uncertainty, but also results in the stagnation of aspects such as the hiring of the judges whom are to rule over the UPC Courts. The Committee hopes 2018 will signal a break through, but the most anyone can do at the moment is wait and see how things play out in individual countries.