UPC & UP – Never Say Never (Again)! (2017-04-03)
As noted in a previous post (“UPC & UP – Never Say Never!”), the UK had, despite “Brexit”, indicated late last year that it still intended to ratify the treaty to establish the UPC. This was hoped to be done in March prior to the UK formally triggering Article 50 to begin the process of leaving the European Union.
The UK Prime Minister triggered Article 50 on 29 March 2017, and it appears that the timetable for the ratification procedure has slipped as this was not done. Nevertheless it is now expected that ratification will still occur sometime after the Easter recess.
In relation to the German ratification, it is expected that Germany will ratify after the UK and therefore its ratification will determine the timing of the coming into force of the UPC (being the first day of the fourth month after the deposit of its instrument of ratification, provided the UK has already ratified by then). It is understood that the German ratification will occur by September 2017, allowing the sunrise period to begin (when opt-outs from the UPC jurisdiction can be filed).
Despite the delay in the UK therefore it still seems possible that the timetable set out in our earlier post for the UPC coming into being may be met. Thus, the central division courts still could open around December this year, including the court based in London. And even if delayed slightly, it would likely only be until early 2018.
We would therefore reiterate our earlier advice that, in the run-up to full UPC implementation, owners of European patents will need to decide whether to opt out any of their existing European patents from the UPC’s jurisdiction, and ensure that all necessary records regarding the ownership of a Patent are available.
There are pros and cons of opting out which we would be pleased to discuss this on a case-by-case basis, but the time for deciding on whether to opt patents out of the UPC is still fast approaching.