By Deborah Kirk
The Delegated Legislation Committee’s (DLC) support for the Unified Patent Court (Immunities and Privileges) Order 2017 (the Order) suggests a swift approval of the Order by the House of Commons. Presuming a rapid approval by the House of Lords thereafter, this could mean the Unified Patent Court Agreement (UPC Agreement) is ratified by the end of 2017 or early 2018.
The DLC met to discuss the Order and passed the motion unanimously. The next stage is for the House of Commons to approve the motion. Following approval, the motion will have to pass through the House of Lords before the UPC Agreement can be ratified. The ratification discussion is scheduled for 6 December 2017.
A date for approval is yet to be set, however, the House of Commons will not debate the motion. The responsibility for debate in this case sits with the DLC, meaning the House of Commons need only reject or accept the proposal. A rejection seems unlikely, however, given that the last rejected motion was almost four decades ago! Notably, the outcome of the House of Lords’ discussion of the Order is less certain.
While the result of the DLC discussion was clear — and generally, parties accepted the need for patent reform to address the fragmented nature of patent law — it revealed uncertainty around the nature of the UK’s relationship with the UPC following the UK’s anticipated exit from the EU. The UPC Agreement is an international treaty, not an EU treaty (although the UPC Agreement is closely linked to the Unitary Patent Regulations). However, the UK will still need to negotiate with its European partners to reflect the change to the UK’s status in relation to the UPC post Brexit.
The uncertainty around the UPC Agreement, along with the legal challenge in Germany awaiting judgment, may delay the ratification of the UPC Agreement — the outcome of which should become clearer by the end of the year. Latham will continue to monitor, and provide updates on, any developments.
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This post was prepared with the assistance of Emma Pianta in the London office of Latham & Watkins.
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