Consistent progress has been made towards the establishment of a unitary patent right (UP) across most countries in the EU. 26 of the 28 European Union Member States (MSs) have participated in the enhanced cooperation needed to establish this new right, which will be enforceable via a new court system – the Unified Patent Court (UPC) – which now looks likely to be established in December 2017.
The UPC will provide an exclusive court for all decisions involving the UP and would also have jurisdiction over European patents which have not been opted out of its jurisdiction (such opt-out being available to patentees up to a date 7 years from the introduction of the new court, although this could be extended, after which all new EPs would be under the exclusive jurisdiction of the UPC).
The UK's decision to ratify the Agreement on a Unified Patent Court (UPCA): Following the UK Government's announcement at the EU Competitiveness Council meeting on 28 November 2016 that the UK would proceed to ratify the UPCA despite plans to leave the EU in due course, the UPC looked likely to be established in the relative short term, perhaps even within the timetable anticipated prior to the Brexit referendum, i.e. by the end of 2017 (see the official UK government announcement here and our commentary on the decision here). It was thought that the UK will ratify the UPCA in April 2017. However the announcement on 18 April of a UK general election on 8 June strongly suggests that ratification will be delayed until after the election, thus delaying the commencement of the UPC system which will take effect on the first of the fourth month after the month in which the last of Germany or the UK has ratified the UPC Agreement. Germany is thought to be planning ratification of the UPCA in August 2017 such that the four month lead-in period before the UPCA come into force can be triggered then, allowing the UPC to commence in December 2017. Therefore, the UK would need to ratify before then for the current timetable to be maintained.