In a welcome but, to many, surprising development, the UK
Government has confirmed that it intends to ratify the Unified
Patent Court Agreement. Once the UK ratifies, Germany is expected
to follow, and the new patents court will come into effect four
months later, enabling for the first time European-wide patent
validity and infringement disputes to be resolved in a single
forum, and unitary patents covering much of the EU to be granted by
the European Patent Office. The UK will be working to bring the
Unified Patent Court (UPC) into operation "as soon as
At the time of the UK's referendum on membership of the EU
in June this year, the necessary ratifications were expected to be
completed in the autumn of 2016 so that the court could open its
doors at the beginning of 2017. The UK had already enacted domestic
legislation in anticipation of the UPC and unitary patent and had
taken out a lease on the proposed court premises in London. The
vote for the UK to leave the EU (known as Brexit) brought
everything to a standstill: if the UK was no longer going to be
part of the EU, would it really contemplate ratifying an agreement
whose very purpose was the creation of a court common to EU member
states, and a court that is obliged to respect the primacy of EU
law? The answer now appears to be, yes.
The UK Government confirmed that the UK intends to play a full
and active role in the EU for as long as it remains a member. On
leaving the EU, the UK desire is for a deal with the EU that will
"give British companies the maximum freedom to trade with and
operate in the Single Market – and let European businesses do
the same in the UK." It therefore looks as if longer term
strategic thinking has influenced the UK Government's position.
Furthermore, it may well be possible for the UK to continue to
participate in the UPC and unitary patent following the UK's
departure from the EU. That will inevitably depend on the
relationship between the UK and the EU that is negotiated over the
coming years. There is, however, a warning in the UK's formal
announcement: the decision to ratify "should not be seen as
pre-empting the UK's objectives or position in the forthcoming
negotiations with the EU".
For now, yesterday's announcement is positive news for all
the users of the patent system. It finally looks like Europe will
bring to fruition forty years of negotiations on a common patent
court. Businesses, as well as practitioners, will need to start
preparing for the new patents regime in earnest.
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1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
The UK government has not yet invoked Article 50 of the Treaty on European Union (this is likely to happen by the end of March), and the UK's actual exit from the European Union is at least two years away.
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