The establishment of Europe’s Unified Patent Court (“UPC”) looks set to be further delayed.  Germany’s Constitutional Court is reported to have asked the German President not to sign legislation implementing the UPC Agreement pending expedited proceedings challenging legislation necessary to ratify it. Should the Constitutional Court find the legislation implementing the UPC Agreement unconstitutional, the introduction of the UPC in its current form could potentially be blocked.

Participants and Ratification

In order to create the new UPC system, the UPC Agreement must be ratified by 13 participating states, including France, Germany and the United Kingdom, the three countries from which the highest number of European Patents originate. To date, France and 11 other participating EU countries have fully ratified the UPC Agreement. In total, 26 EU countries have pledged to do so, including Ireland. Although, the Brexit referendum had put UK ratification in doubt, the UK Government has since committed to ratification.

Position in Ireland

In Ireland, ratification of the UPC Agreement will require a referendum to amend the Constitution.  The heads of a bill proposing such a referendum were approved as long ago as 23 July 2014 and in May 2016 the current administration re-committed itself to holding a referendum.  The Government’s recent Legislative Programme for Spring/Summer 2017 again included the Amendment of the Constitution (Unified Patent Court) Bill in a list of legislation to be introduced later in the term of this Government. 

Next Steps

On 7 June 2017, the UPC Preparatory Committee announced that the timetable for the start of the UPC Agreement provisional application period and target date for entry into operation of the UPC, envisaged for 1 December 2017, would not be met.  It has not provided a new target date at this stage, but has committed to publishing a new timetable as soon as possible. 

Contributed by: Charleen O’Keeffe & John Sugrue