Düsseldorf, 28.07.2020 – Great Britain has withdrawn its prior ratification of the Agreement on the Unified Patent Court (UPCA). To date, the UPCA has been ratified by 16 signatory states. Ratification by Germany is still pending.
Experts assume that Great Britain's position will not affect the entry into force of the Unified Patent Court (UPC). In its draft bill on the UPCA presented in June 2020, the German Federal Ministry of Justice stated with regard to Brexit that "a withdrawal of Great Britain has no influence on the applicability of the regulations on entry into force for the reason that they are to be interpreted in such a way that an unforeseen withdrawal of one of these three states [C&F: i.e. Germany, France and Great Britain] shall not prevent the entire entry into force for the remaining parties.” The German Bar Association also concludes in a statement that "Brexit in no way devalues the Agreement". The now revoked ratification by Great Britain is not likely to affect this either.
Up to now, Paris, Munich and London have been envisaged as the seats of the chambers of the UPC central division. A new location would now have to be found instead of London. However, this location will likely only be determined after the UPCA has entered into force. Until then, according to the plans of the German government and the EU Commission, Paris and Munich are to take over the tasks of the London division. The Italian government, among others, considers this reallocation problematic. In their opinion, as the EU member state with the third-largest number of patents in force (after Germany and France), they should be entitled to the seat of the patent court originally planned for Great Britain. In fact, Brexit has now placed Italy in the group of three states which must ratify in order for the UPCA to come into force. "One could even speculate here whether Italy might not also withdraw its ratification in the foreseeable future in order to gain a stronger position in the negotiations of the vacant court location," says Gottfried Schüll, patent attorney and partner at Cohausz & Florack.
"All in all, the latest developments concerning the Unified Patent Court show that now everything is possible again. The cards are being reshuffled," Schüll continues. "Until robust solutions have been found in this tough process, patent owners can continue to rely on the expertise of German courts in patent infringement proceedings."
Picture Credits: Frédéric Prochasson – AdobeStock