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„Hard Brexit“ - Progress of the unitary patent

Despite Britain’s announcement to exit the European Union, the United Kingdom surprisingly announced on November 28, 2016 that they intend to ratify the agreement on the Unified Patent Court. Should the UK implement this intention, only Germany would have to follow. The agreement would then enter into force because the requirement of ratification of the agreement by at least 13 EU member states, including the mandatory states Germany, France and the United Kingdom would then be fulfilled.

However, due to the fact that Theresa May announced a hard Brexit on January 17, 2017, which, besides the exit from the domestic market and the European customs union, includes in particular the termination of the superintendence by the European Court of Justice, a participation of the United Kingdom in the unitary patent and the Unified Patent Court has become more unlikely than ever. If the supremacy of the European Court of Justice is not recognized and thus the precedence of the Union law, the Unified Patent Court and the judicial system of the EU are no longer compatible. After all, the agreement was made considering that the European Court of Justice (ECJ) must guarantee the priority of the law of the EU, that the Patent Court must observe the Union law and, in cooperation with the ECJ, must guarantee that it is applied and interpreted correctly and that the Patent Court cooperates with the Court of Justice when properly interpreting Union law and must base itself on the latter’s jurisdiction.

Currently, a total of 11 EU member states has ratified the agreement, i.e. Austria, Belgium, Bulgaria, Denmark, Finland, France, Luxemburg, Malta, the Netherlands, Portugal and Sweden.

Therefore, some scepticism regarding the establishment of the unitary patent and the Unified Patent Court is still necessary.

January 24, 2017; Vanessa Bockhorni (PA)

© Bockhorni & Kollegen

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