The European Unitary Patent System and Unified Patent Court

The UK’s role in the UPC

A number of UK associations have commissioned a report on the UK’s position in relation to the UPC after the country leaves the EU. Although on the brink of entering force, commencement of the UPC has been paused following the 23 June referendum result. The Opinion concludes that while the UK could be a member of the UPC after leaving the EU, this would require additional legislation and amendment of the Agreement. It therefore seems unlikely the UPC will enter force in its current form (which requires the UK to start), and a new agreement will have to be reached.

While in theory the UPC system could enter force in 2017, if Germany and the UK ratify the Agreement, this seems increasingly unlikely. The UK has been largely silent on whether it will ratify, and industry bodies are not pushing for such ratification, while Germany are believed to be very negative about ratifying in the face of a coming UK exit. In the absence of very clear agreement that the system would continue unaffected by the UK leaving the EU, it seems very unlikely the system will be allowed to enter force in its current form.

Although the UPC Agreement is technically not EU legislation, its effect is intertwined with the EU and there are significant questions whether it could operate with non-EU countries. Even if the legal hurdles can be overcome, politically, ratifying an agreement which states in its preamble the supremacy of EU law feels exceptionally risky in the UK’s current climate.

Critical in the process of moving forwards will be the effect of the UK’s departure on the functioning of the system, and how things will change.

The Opinion (available here), by leading UK Barristers in constitutional and EU law, has concluded:-

– New international agreement will be needed with EU member states to enable the UK to participate in the UPC after leaving the EU.
– The UK could still host a section of the Central Division of the Court, subject to amendment of the UPC Agreement.
– The UK would have to submit to EU law for all proceedings before the UPC, and would need to join a suitable jurisdiction and enforcement regime.
– If the Agreement was ratified prior to the UK’s exit, and entered force, the UK section of the Central Division of the Court would have to close when the UK leaves the EU.

The requirement for changes to the Agreement is most likely to mean the Agreement in its current form will never enter force. In turn, this means any UPC-like system is now a number of years away as significant progress before the UK leaves is very unlikely.

Although the simplest amendment would to exclude the UK (after exit from the EU) there is significant doubt in industry whether a UPC without the UK is desirable. Industry considers this option unlikely, hence suggesting the most viable option is to try to overcome the hurdles of implementing a system with the UK.

It therefore appears that the status-quo will remain for the foreseeable future. Amid all the turmoil around the UPC and EU, it is important to remember this does not affect the UK’s membership of the EPO. The EPO is not an EU body, and whatever happens to the UK’s membership of the EU we will remain a contracting state of the EPO and UK practitioners will retain full rights at the Office.