The Unified Patent Court (UPC) has had a rough few years. It felt so close to implementation in 2017, and then it hit two major obstacles. Firstly, there was a constitutional complaint in Germany that their ratification of the Agreement on the UPC breached the German constitution. Then, following the UK Brexit vote, the UK Government eventually withdrew its previous ratification of the Agreement on the UPC.
The most recent news is that the first obstacle to the UPC appears to have been removed. The German ratification of the UPC Agreement is moving forward once more following a vote by the Bundestag’s members yesterday. The next step is a final vote by the Bundestag, which is likely to be held on 18 December 2020.
As well as the German vote, the UPC website notes that "a further two Signatory States need to agree to be bound by the Protocol on Provisional Application in order for the project to move into its final phase", but this does not seem to be an insurmountable hurdle.
Regarding the UK's non-participation, this does not prevent the actual implementation of the UPC, but there will of course be impacts. For example, the London-based Central Division of the UPC will need to be relocated. In addition, the loss of UK legal expertise may impact upon those parts of the UPC legal procedure that are predominantly based on UK law. Nonetheless, it seems that one key question is whether the UPC system will be sufficiently popular without the UK's involvement.
The most recent statistics from the EPO indicate that Germany, France and the UK are the top three countries for validation of European patents. Previously proposed cost schedules suggest that obtaining a Unitary Patent across all UPC contracting states will be equivalent to validating in 4 of the key European countries. Therefore, for budgets to balance, an applicant would now need to be validating in 4 countries excluding the UK in order for a Unitary Patent to be cost neutral. This may prove to be a significant hurdle for uptake by applicants, particularly in the early years.
Importantly, implementation (or not) of the UPC has no impact on being able to obtain a UK patent via the European Patent Office. It will remain possible to validate a European patent in the UK whether or not the UPC eventually makes an appearance.
The goal of bringing the Unified Patent Court into operation moves an important step closer this evening with the news from Germany that the Bundestag has voted on and approved the legislation for the Agreement on the Unified Patent Court and its Protocol on the provisional application.