Ratification of the agreement for the unified patent jurisdiction and the provisional protocol of application is moving forward rather steadily. During the summer, two new member states submitted their ratification instruments: Estonia on 1 August and Lithuania on 24 August. According to our sources, the situation may be resolved soon with regard to Germany and United Kingdom.
The number of member states that have ratified the agreement and the provisional protocol application has now risen to 14. Nonetheless, the agreement can still not enter into force until the required ratification instruments from two major member states, the United Kingdom and Germany, have been submitted.
For completely different reasons, however, the former has delayed its ratification owing to the Brexit negotiations and the early general election last June. The British government, however, gave its green light last July for applying the protocol, although the agreement has not yet been ratified. Germany had to postpone ratification following an anonymous appeal at the Constitutional Court in Karlsruhe against ratification of the agreement at the beginning of the summer.
According to one diplomatic source, the situation in these two countries is expected to be resolved very soon. The Karlsruhe Court is expected to deliver its decision “soon”, which it claims will certainly be before the end of the year. The same applies to the United Kingdom, which is expected to ratify the agreement shortly, according to this same source.
Once the agreement and protocol are ratified by Germany and the United Kingdom, a further six months will be required for the unitary patent to be effectively put into practice. This means that its effective entry into force will be during the spring of 2018 at the very earliest.
On 20 September, experts from the Council of the EU’s intellectual property working group will carry out an examination of the ratification process.
The European Commission appears to be losing patience. During the Competitiveness Council last May, the Commissioner for the internal market and industry, Elżbieta Bieńkowska, expressed a certain irritation with the delays in the ratification of the protocol agreement (see EUROPE 11798).
It should be pointed out that ratification by 13 member states is obligatory for France, Germany and the United Kingdom, the three countries that submit the most patents and is required for the agreement and its protocol to enter into force. The protocol allows for the finalisation of the procedural rules and for the judges and the unified legal personnel to be recruited. (Original version in French by Pascal Hansens)