Developments relating to the UPC and the unitary patent have been on the back burner for a while. Around this time last year I wrote that the implementation of the unitary patent and UPC was being delayed by Brexit and a constitutional complaint filed with the German Federal Constitutional Court. These two hurdles were giving rise to so much uncertainty that there was widespread doubt as to whether the UPC and the unitary patent would be going ahead in the coming years.
One hurdle has been taken, leaving one more to go
However, some headway has been made recently. The United Kingdom decided to ratify the UPC Treaty on 26 April. This could be an important step forward, as only one hurdle remains now: the complaint filed with the Federal Constitutional Court.
It is expected that more clarity about this case will become available in the autumn of 2018. If the constitutional complaint is found inadmissible, the implementation of the Unitary Patent and UPC can go ahead. However, the constitutional complaints filed have been well substantiated and the possibility that the Federal Constitutional Court will find one or more of these complaints admissible should not be excluded.
Brexit continues to be an uncertain factor
The potential problems surrounding Brexit have not been resolved with the ratification by the United Kingdom. It is clear that the United Kingdom will no longer be part of the unitary patent after Brexit. After all, the unitary patent is only open to EU countries. This will probably also apply to the UPC, because the UPC is in fact an EU project. However, it is possible that a political opening will be created to ensure that the United Kingdom can continue to be part of the UPC after Brexit as well, in which case the UPC Treaty will need to be amended.
There appears to be a possibility that a decision on the constitutional complaint filed with the Federal Constitutional Court will not be taken until after Brexit. This could lead to further problems and possibly delay matters for several years.
Implementation of unitary patent and UPC in ....
In short: thanks to the British ratification we have managed to make some headway. Unfortunately it is still impossible to say much about the implementation date. In the most optimistic scenario, the German Federal Constitutional Court will ratify the UPC Treaty in the autumn of 2018 and the new patent system can be a fact in 2019.
In the most pessimistic scenario, the Federal Constitutional Court will reject the new system - only after Brexit - on account of a conflict with the German Constitution, and it is also decided that the United Kingdom cannot be a party to the UPC Treaty.
In that case the UPC Treaty will need to be amended and once again ratified by all countries. A realistic scenario appears to be that the implementation will be postponed, possibly for several years. One of the things I have learned as a faithful unitary patent follower is that it is better not to make any bold statements about this.