‘Brexit and the Legal Legitimacy of the Unitary Patent Court’ – A response

Abstract In GRUR International 2024, pp. 191-197, Nicolas Binctin (Professor in Poitiers, France) and Craig A. Nard (Professor in Cleveland, USA) come to the surprising conclusion that the conditions for the entry into force of the Agreement on a Unified Patent Court (UPCA), as set out in its Art. 89(1), are still not met. If their opinion were correct, not only would a new ratification by the contracting member states (including referenda in Denmark and Ireland) be necessary (this is what the authors advocate), the Unified Patent Court (as it is properly called) would be up in the air, along with its decisions and orders to date. In short, the authors assume that effective ratification by the United Kingdom is still required for the application of Art. 89(1) UPCA as long as the said provision has not been amended removing its alleged reference to a ratification by the United Kingdom. They derive this view essentially from the wording of Art. 7(2) UPCA (according to which a division of the central division is located in London) and from Art. 3(1) of the Protocol on the Provisional Application of the UPCA (referring to a ratification of the UPCA by the United Kingdom as a precondition for the entry into force of the Protocol).