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The UK’s path to ratifying the UPC Agreement 

Keltie LLP

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IMG_8533-0As we reported a couple of weeks ago, the UK announced at the EU Competitiveness Meeting in November that it would be continuing with its preparations for ratifying the Unified Patent Court (UPC) Agreement.

In an article last week I noted that I was unsure of the steps the UK would need to take to ratify. Since then however I have very kindly been walked through the remaining steps of the ratification process in a conversation with Dr Laura Starrs at the UKIPO.

Following this conversation IPcopy understands the process as follows (Note: any errors or omissions in what follows are my fault alone!):

Ratification Process

  1. The UK needs to sign the Protocol on Privileges and Immunities. This will likely be announced on the UPC Preparatory Committee website and/or by the IPO’s UPC Taskforce (IPcopy was pleased to hear that the regular Taskforce communications are likely to start up again soon); [Update (20/12/16): this has now been done – see here for more details]
  2. The signed Protocol will need to be laid before Parliament for 21 days (Followers of all things UPC will remember that the UPC Agreement has already been laid before Parliament – see here); [Update (20/1/17): this has now been done – see here for more details]
  3. A Statutory Instrument (SI) on Privileges and Immunities will need to be finalised and laid before the Westminster and Scottish Parliaments. These P&I Orders will confer the correct privileges and immunities on the Court and its staff under UK law;
  4. The two SIs will be subject to an affirmative procedure which means that there will be committee debates in both Houses of Westminster and also in the Holyrood Parliament;
  5. For the SI that passes through Westminster there will be both Commons and Lords committees. The procedure will be broadly similar as for the SI related to the UPC earlier in the year but will also include Privy Council approval. I understand that Commons Committees are appointed as necessary according to the current government makeup (so a small Conservative majority) whereas the Lords Committee is open to anyone that wants to turn up. It is also my understanding that the likely participants in the Committees will have been sounded out before the SI makes it that far. As such it is unlikely that the SI would fail to pass through the process (since it wouldn’t be put before Committee if there was a perceived risk);
  6. Following approval of the SIs in the Westminster and Scottish parliaments, the UPC Agreement will be ratified via an internal procedure between the UKIPO and the Foreign Office. The only slight delay at this point may be in locating the Foreign Secretary to get him to sign the letter that will be sent to Brussels!

Tracking Progress

A list of Statutory Instruments that are currently before Parliament can be found here.

Timescale

In order to start the above process a slot will be needed in Parliament. Once started however the process should potentially take 6 weeks to a few months. For comparison it is noted that the Patents SI was laid before Parliament in mid January 2016 and passed on 12 March 2016.

Until the above process gets underway there may be a tendency to question whether the UK is serious about ratifying the UPC Agreement. However, the official line is that while we are members of the European Union we will continue to play a full and active role in the EU. Further, ratification of the UPCA should not be seen as prejudging the Article 50 notification or any post-Brexit position the UK may take. As noted above it will  be possible to monitor the SI list on the Parliament website to see when the process gets underway.

Mark Richardson 13 December 2016


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