While the UK is in the current election campaign for Brexit, preparations for a European Patent Court are in full swing. The Preparatory Committee for the Unified European Patent Court officially announces early 2021 as a new possible start date – and is confident that UK will be part of UPC even after Brexit.
European Patent Court depends on German constitutional complaint
For years there has been an effort to create a common European single patent and a single patent court within the EU member states. A few days ago, a judge of the German Constitutional Court confirmed that at the beginning of next year he would decide on the constitutional complaint against the ratification of the UPC (Unified Patent Court) in Germany. The Federal Parliament ratified the UPC more than 2 years ago, but the ratification was suspended until after the decision on the constitutional complaint. However, the UPC cannot begin without ratification from Germany.
Read more about it here: Brexit: EU Unified Patent Court – without UK?
UPC Preparatory Committee well prepared
Now Alexander Ramsay, head of the Preparatory Committee for the Unified Patent Court (UPC), explained that the UPC Prepatory Committee is prepared to enter a preliminary application phase for the UPC immediately after the Constitutional Court’s ruling. A precondition for this is, however, that the German Constitutional Court rejects the complaint and thus allows the ratification of Germany, which has already taken place but is suspended, to enter into force.
European Patent Court with the UK?
Alexander Ramsay is also confident that Great Britain will be part of the Unified Patent Court, independent of Brexit. The United Kingdom has ratified the UPC agreement and as such is a contracting state. It is an international treaty and not EU law, argues Ramsay.
However, the UK’s participation in the UPC is by no means certain. The corresponding agreement on a Unified Patent Court, published in the Official Journal of the European Union of 2013 (2013/C 175/01), clearly states that this agreement is open for accession by any member state of the European Union – and only by EU member states.
European Patent Convention is not purely European
This differs from the European Patent Convention (EPC), through which the so-called European Patent Organisation (EPO) with the European Patent Office (EUIPO) registers and regulates patents in Europe. Contrary to what the name suggests, the European Patent Convention has other members in addition to the EU member states, a total of 38 contracting states. These contracting states form a special association according to the Paris Convention for the Protection of Industrial Property (Paris Convention). The European Patent functions like a bundle of national patents of the desigered contracting states.
Political decision on the UK and Brexit: a special case
However, the Unified Patent Court has been designed and contractually established exclusively for the Member States of the EU. There are no plans to extend it to other states. After some hesitation, the UK ratified the agreement in April 2018, but after the Brexit, the UK would no longer be an EU member state.
This is a special case that could not have been foreseen when the Unified Patent Court was established by contract. One could argue that all EU member states that have ratified the Convention are participants in the Unified Patent Court, regardless of their later status as EU members. Alexander Ramsay argues in that way, but stresses that as chairman of the Preparatory Committee he sees the situation on a technical level and not on a political level.
However, UK participation after a Brexit would not be possible without complications. Brexit is declared to give back to Great Britain the control of the borders and also of the laws completely. Will the UK as part of Unified Patent Court subordinate then itself to the EU in patent law of all things? And would the UK still have the possibility of influencing the unified patent court? Ultimately, after a Brexit, it must therefore be politically clarified whether and how the UK can be a member of the Unified Patent Court and how the contractual situation would have to be adapted accordingly.
Preparations for the UPC well advanced
Overall, preparations for the UPC are well advanced, according to the UPC Preparatory Committee. It would take at least 8 months to launch the UPC after Germany has ratified the Convention, explained Alexander Ramsay. The UPC could therefore start at the beginning of 2021 at the earliest.
The selection process for the UPC judges can begin soon, Ramsay says. Since the job opening in 2016, more than 900 judges have applied for the UPC. The current plan is to appoint about 50 legally qualified judges and 50 technically qualified judges.
Teams are also in place to ensure that the court’s register rules are operational. In addition, the system and processes of the IT system that will be the basis for the UPC have been carefully tested.
High expectations of the Federal Constitutional Court
In order to continue in a meaningful way, the final ratification from Germany is now absolutely necessary – and the head of the UPC Preparatory Committee is also confident that the Constitutional Court will reject the complaint. Therefore high expectations are placed on the Federal Constitutional Court, as both industry and the Federal Government are eagerly awaiting ratification from Germany.
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