Are We There Yet? Recent Obstacles On The Rocky Road To The Unitary Patent

By Patricia Cappuyns and Jozefien Vanherpe

Following the Brexit vote on 23 June 2016, chances of the UK ratifying the Agreement on a Unified Patent Court (UPCA) appeared slim. Since such ratification is required for the entry into force of the Unitary Patent system, including the Unified Patent Court (UPC), this meant that the future of the Unitary Patent was hanging in the balance. At the end of November 2016, the UK government relieved anxious proponents of the Unitary Patent system by confirming that it would be proceeding with preparations to ratify the UPCA. In December 2016, Germany followed suit and also resumed its preparations for UPCA ratification. While this seemed to bring us closer to the Unitary Patent, any unbridled optimism was soon thwarted when UK Prime Minister Theresa May announced in January 2017 that her government’s Brexit will be a “hard” one, involving a clear departure by the UK from the EU single market as well as the UK’s withdrawal from the jurisdiction of the Court of Justice of the European Union (CJEU). This could jeopardise the possibility for the UK to remain part of the Unitary Patent system in a post-Brexit world.

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