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The Netherlands ratifies Unified Patent Court Agreement

The Netherlands has become the eleventh country to ratify the Unified Patent Court (UPC) Agreement.

The country follows France, Austria, Belgium, Bulgaria, Denmark, Luxembourg, Malta, Portugal, Sweden and Finland in implementing national legislation endorsing the UPC Agreement.

The UPC Agreement needs to be officially ratified by at least 13 EU countries, with that number including France, Germany and, as it stands, the UK, for the Agreement to take effect.

In a statement the Dutch government said that Germany is expected to ratify "shortly".

It is not yet clear whether or when the UK will ratify the UPC Agreement given the country's vote to leave the EU. The Agreement requires countries participating in the new unitary patent and UPC system to be EU members.

Unitary patent protection was expected to be available to businesses from next year, but the Brexit vote outcome has raised uncertainty about the timescales for its operation. 

Under the new system companies will be able to obtain patent protection for their inventions in participating countries through a single patent application to the European Patent Office (EPO) and without having to further validate the patent in each of the individual countries.

Unitary patent protection will only apply in those states which sign and ratify the UPC Agreement as well as adopt the unitary patent regulations. Ratification of the Agreement would give legal recognition to the new UPC as a judicial forum for settling disputes concerning the validity and alleged infringement of new unitary patents, as well as European patents unless they are opted out.

Brick Court Chambers (BCC) recently published an opinion (39-page / 376KB PDF) it produced for the IP Federation, the Chartered Institute of Patent Attorneys and the Intellectual Property Lawyers Association on issues related to the UK's participation in the unitary patent and UPC initiative following the Brexit vote.

BCC said that the UK "would need to overcome a substantial number of obstacles" to participate in the unitary patent and UPC regimes post-Brexit.

BCC said a new international agreement would have to be put in place between the UK and the EU and its member countries to allow the UK to participate in the initiatives from a position of non-EU member. However, as part of the agreement, the UK would have to sign up to "sufficient safeguards to protect EU constitutional principles, such as the supremacy of EU law and the ability to make preliminary references to the CJEU (Court of Justice of the EU)", it said.

Even if such an agreement is put in place, the CJEU might rule that it is not "constitutionally possible for the UK to continue to participate" post-Brexit if such participation is challenged before the court, BCC warned.

The BCC opinion also cited the risk that London could lose the central division seat of the UPC that has been allocated to it for resolving disputes concerning unitary patents and non-opted out European patents in field of life sciences.

According to a report by the Financial Times, an Italian trade body has written to the Italian government urging it to lobby for Milan to replace London as the host location for the life sciences central division seat in light of the Brexit vote.

Pinsent Masons, the law firm behind Out-Law.com, said that the Netherlands' ratification of the UPC Agreement could lead it to build a case for hosting the court instead.

Patent law specialist Helen Cline of Pinsent Masons, the law firm behind Out-Law.com, said: "Post the referendum result in June it is now not clear if and when the UK plan to ratify. There are significant legal and political challenges that, although not insurmountable, need to be discussed and any solutions agreed."

"The UK is currently the planned location for the chemicals and pharmaceuticals section of the UPC’s central division. However, as there is a possibility that the UK may no longer be part of the unitary patent system, this section may need to be relocated. The Netherlands’ recent ratification of the UPC Agreement may challenge Milan’s attempt to host this court," she said.

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