Under UK law, all domestic legislation that is necessary to give effect to the unitary patent regime in the UK must be passed before the UK will ratify the Unified Patent Court Agreement (the "Agreement"). On 8 February 2018, the Privy Council approved the final piece of that legislation: the Unified Patent Court (Immunities and Privileges) Order 2018. The Order provides that "the Unified Patent Court is an organisation of which the United Kingdom and other sovereign Powers are members". It also confers certain privileges and immunities on UPC judges and other staff.
The UK's Foreign Office is now entitled to ratify the Agreement by depositing a formal letter to that effect, signed by Foreign Secretary Boris Johnson MP, with the EU Council's General Secretariat. Whilst approval of the Order is a move in the right direction, the UK Foreign Office is not compelled to deposit a letter of ratification. Whether and when it may do so, remains uncertain (especially given the pending constitutional challenge to the UPC package at the Federal Constitutional Court (BVerfG) in Germany which has cast a further shadow over the creation of the UPC).
Several bodies, including the UK Law Society and the IP Federation have urged the UK Government to ratify the Agreement as soon as possible and certainly before the EU Summit on 22-23 March when European Council President, Donald Tusk, will issue guidelines for the negotiations on the future relationship between the UK and the EU. The concern is that if the UK does not ratify before 22 March, there is a risk that other EU member states will implement the UPC without the UK.
Even if the UK does ratify the Agreement promptly, questions will remain as to whether the UK can legally remain a member of the UPC once it leaves the European Union.
With thanks to trainee solicitor, Lauren Howes, for her contribution to this blog.