The UPCA’s Path to Entry into Force between Delayed and Withdrawn Ratifications – Dead-end Street or Bumps in the Road?

Abstract

On 11 December 2012, as part of the ‘EU patent package’ and the EU's efforts towards a unified patent system, the European Parliament approved the Unified Patent Court Agreement (UPCA). The entry into force of the UPCA, which was signed on 19 February 2013 by all Member States participating in enhanced cooperation (except Bulgaria and Poland), requires ‘the deposit of the thirteenth instrument of ratification or accession […], including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place’. At the time, the clause was taken to mean that the entry into force of the Agreement was subject to its ratification by Germany, UK and France, and 10 other Member States. France deposited its instrument of ratification on 14 March 2014, while the United Kingdom did so on 26 April 2018 as the 16th signatory state in total. In Germany, however, approval of the agreement faced obstacles on the national level, delaying the UPCA's entry into force. As Germany finally seemed to have settled internal debates on ratification, on 20 July 2020, the United Kingdom declared that it was withdrawing its ratification of the UPCA. This article discusses whether the UPCA may, in the current form, enter into force without the UK's ratification against the background of principles of international treaty law.