UPC Update – Draft Brexit Agreement

Anna L Hatt | March 2018

This week’s draft Brexit agreement may help the United Kingdom to stay part of the Unitary Patent Package.

Entry into force of the Unitary Patent Package requires ratification in Germany. This has been delayed by a challenge brought by an individual before the Federal Constitutional Court.  The outcome of this challenge is expected in 2018, but there has been concern that this would not allow time for the Unitary Patent Package to enter into force before the United Kingdom leaves the European Union on 29 March 2019.

There has now been a welcome development.  On 19 March 2018 a draft agreement on withdrawal of the United Kingdom from the European Union was published.  The draft agreement provides for a transition period maintaining the status quo for various intellectual property rights until 31 December 2020. 

Although the unitary patent package is not part of the draft agreement, the transitional period may allow time for the Unified Patent Court to open and the first unitary patents to be granted with the United Kingdom as a participant.  Further agreement would still be needed for the United Kingdom to remain in the system after end of the transition period.  This is not a simple matter, as the United Kingdom would probably need to accept the jurisdiction of the European Court of Justice.  However, long-term participation of the United Kingdom now seems more likely.

We are watching the situation closely and will provide further updates.