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Has Brexit scuppered the UPC?

Keltie LLP

K2 IP Limited

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The unitary patent system is aiming to create a European patent registration and litigation system. To bring the whole system into being, 13 EU member states, including France, Germany and the UK, need to ratify the UPC agreement and currently 16 member states (including France, the UK but crucially not Germany) have done so.

For some time, the unitary patent project has been stalled because an ongoing legal challenge in Germany has prevented Germany’s ratification process from being completed. In addition to this, the fallout from the UK’s Brexit vote has also cast a sense of uncertainty over the planned system because the unitary patent system is only, in its current form, open to EU member states to join. The UK’s expected departure from the EU therefore casts some doubt on whether the system will even take place.

In the face of the above two challenges however the UPC Preparatory Committee has continued to make technical and operational preparations in anticipation of a positive result from the German Constitutional Court.

Recently however the German Federal Ministry of Justice made a statement to the German Parliament indicating that an examination of the UK’s exit from the EU on the proposed unitary patent system will need to take place before ratification can occur.

This official statement from the German government indicates that Brexit will need to have happened before the German UPC ratification process can be concluded.

Quite when Brexit will happen is still anyone’s guess with the Rebel Alliance in the UK Parliament passing a cross-party bill last week requiring the prime minister to request an extension to the exit deadline until January 2020 unless a deal is agreed between Parliament and the EU by 19 October 2019.

The comments from the German Ministry of Justice signal an official acknowledgement that the Brexit effect has hit the unitary patent project and it is likely that significant further delays will be seen before the system is implemented and that possibly the system may never even see the light of day in its current form.

Mark Richardson 12 September 2019


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