UK Election likely to delay Unified Patent Court?

This week’s snap decision by the Prime Minister to call an early election caught pretty much everyone by surprise and, in IPcopy’s view, is likely to delay (again) the progress of the unitary patent system as the processes around the election seem likely to interfere with the UK’s ratification of the UPC Agreement. In this post we take a look at the timeline for the election and how, in our view, it might potentially push the unitary patent system start date into early 2018.

Under the UK’s Fixed-term Parliaments Act 2011 the next election was meant to be in 2020, five years after the last election in May 2015. The Prime Minister however has decided that she wants to go back to the polls early to increase her majority and presumably make the process of delivering Brexit easier for the Government.

However, the election will require us to negotiate a period of parliamentary inactivity, namely the dissolution of Parliament and the period of purdah. So, let’s take a look at the UPC timeline versus the election process.

The UK’s path to ratifying the UPC Agreement is described in our earlier post here and includes the need for two Statutory Instruments to be laid before the Westminster and Scottish Parliaments. It was hoped that this would occur before the Article 50 notification but this slipped and the last IPcopy had heard we were hoping for the SIs to move forward after Easter.

The completion of the UK ratification process was to feed into the progress of the unitary patent system and the plan there was for the UK and Germany to complete their ratification processes to such a degree that a period of provisional application of the UPC Agreement could begin at the end of May 2017. The opening of the system and the Unified Patent Court would then occur 6 months later at the beginning of December 2017 with a sunrise period for registering opt-outs from the Court running from September to December.

The UK’s election process will however result in the dissolution of Parliament on 3 May after which all parliamentary business will end until after the election. Civil servants will  also enter a period of “purdah” in which there are restrictions on the activities they can carry out. In the last few days of Parliament before dissolution there will be the “wash-up period” in which the Government tries to push through some legislation that might be in progress.

The BBC suggests that there may only be 5 days of business between now and the dissolution of Parliament which to IPcopy’s mind does not leave enough time in the wash-up to complete all the processes necessary to get the SIs through.

So, at the least, it looks like the rest of the UK’s ratification tasks will be pushed until after the election. Again, the BBC suggests that the state opening of Parliament might not be until 14 or 21 June.

So, possibly UK ratification could pick up again toward the end of June. However, IPcopy notes that Parliament is due to go on its Summer recess on 20 July 2017 and so there would only be a few weeks to get the SIs through. Given that we’ve been anticipating the UK to initiate this process since the beginning of the year IPcopy wonders whether it might not be until the Autumn before we can really expect things to resume on the UPC front in the UK.

Autumn 2017 is of course the period when Federal elections in Germany are to be held. Readers in Germany are invited to speculate how this might impact the progress of the UPC.

So, to recap and according to IPcopy’s speculation above, UK ratification may not occur until July and possibly the Autumn. With a 6 month period of provisional application before the UPC opens this could mean that the opening of the unitary patent system is delayed until February 2018 or maybe even Spring 2018. Such a start date is within a year of the UK’s expected exit from the EU which then begs the question whether the UK will even want to continue when the precise mechanism by which we can participate in the unitary patent system post-Brexit is unknown.

IPcopy has asked the UKIPO about the impact of the election but so far we haven’t heard back. Presumably they’re all still banging their heads against the table having only just left the last period of inactivity after the Referendum result last year.

IPcopy would not be surprised to hear calls again for the remaining unitary patent member states to start working on a way to go ahead without the UK. Expect mention of Milan as a seat of the central division of the UPC anytime soon….

Mark Richardson 20 April 2017