The chair of the committee tasked with implementing the Unified Patent Court has conceded it cannot give a definitive starting date for the institution, despite the UK government resuming the legislative steps needed to bring it about.
Alexander Ramsay, chair of the preparatory committee, said in a message on the court's website that there were still three additional approvals needed, including from Germany, which had added a 'layer of complexity'.
If approved, the UPC would result in the creation of a court on UK soil which will be partially subject to the Court of Justice of the EU. To come into force it needs 13 ratifications from its signatory members, all EU countries. Ratifications from France, Germany and the UK are mandatory as they will host central divisions of the court.
Earlier this month, the federal Constitutional Court asked the German parliament to halt the ratification legislation after a challenge from a private individual. Ramsay said: 'According to publicly available information an unnamed individual has lodged a complaint against the bill regarding the German ratification and has also submitted a request for preliminary/emergency measures ordering the suspension of the ratification until the court has decided on the merits of the case.'
Ratification has been suspended until the court has decided on the request for preliminary measures.
'Under the current circumstances it is difficult to maintain a definitive starting date for the period of provisional application,' Ramsay said, adding that he was hopeful the court would be operational by early 2018.
Ramsay's statement comes just days after the UK government continued steps toward ratification. An order on privileges and immunities was laid before parliament this week. The order will have to be debated in both houses of parliament, as well as in committee, before it can be approved.
Solicitors close to developments have told the Gazette they believe the UK will not ratify the court agreement until October. Initially, the UK had been expected to approve the agreement around Easter but the snap general election put a halt to proceedings.
The UK has its own problems given the shortage of time before parliament rises for its annual recess and potential controversy over Brexit. Parliament is due to break on 20 July and will not return until early September.
Once operational, the UPC will hear disputes related to unitary patents – a type of patent valid in 25 EU member states, currently including the UK. One of its seats will be in Aldgate Tower, on the edge of the City of London.
The Intellectual Property Office maintains that the UPC is not an EU institution and instead an international court set up under international law. However it will be able to refer appeals on certain matters of law to the Court of Justice of the EU in Luxembourg. Referral to the CJEU will only be made where there is a substantive issue of EU law and not for basic validity and infringement matters.
Meanwhile, rules governing the court state that only solicitors and barristers registered to practise before a court in an EU member state are able to litigate through the court. That would prevent UK-based solicitors and barristers acting for clients in the court after the UK leaves the EU, - though UK-based patent attorneys would be able to appear. Once ratification is advanced, a group of solicitors and barristers will work on getting the rule changed.