Two Down, One to Go: The UK Ratifies Unified Patent Court Agreement
On April 26, 2018, the United Kingdom ratified the Unified Patent Court Agreement ("UPCA"). This act removed any doubts concerning the United Kingdom's determination to participate in the agreement post-Brexit. However, the very existence of the agreement is still an open question. Along with Germany and France, the United Kingdom is one of the three signatories whose ratification is required for the agreement to enter into force. Now that France and the United Kingdom have ratified it, the fate of the agreement lies wholly in German hands.
Germany's ratification was halted after a constitutional complaint was lodged last June. The complaint addresses issues regarding the democratic accountability of the regulatory powers overseeing the operation of the Unified Patent Court ("UPC") and the independence of the judiciary. It was admitted for decision by the Second Senate and is on this year's agenda. It is possible, however, that questions of European law will be referred to the Court of Justice of the European Union for preliminary ruling under the Treaty on the Functioning of the European Union. If so, the intended implementation before the United Kingdom leaves the European Union on March 29, 2019, is less probable.
What happens to the agreement after this historic day is hard to predict. The UPCA is an international agreement, which was set up under the European Union's auspices, and membership is presently limited to EU countries. Therefore, the United Kingdom's future relationship with the UPC will be subject to negotiation with the European partners who expect the United Kingdom to accept the supremacy of EU law on UPC decisions while participating—a necessary political burden.
Thus, the UPC saga continues. Stay tuned for the next installment from the German Constitutional Court.
For further information, please contact your principal Firm representative or the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com/contactus/.
Munich / Dűsseldorf
+18.104.22.168.42.200 / +49.211.5406.5500
Alastair J. McCulloch
Diana C. Leguizamón-Morales
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our "Contact Us" form, which can be found on our website at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.