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Unitary Patents and Brexit: where are we?

Heidi Hurdle
14/11/2019

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United Kingdom

Amidst all the highly-charged Brexit debates, little has been said recently about the position of the Unitary Patent and the UPCA. Hot off the press is the publication of a European Parliament Think Tank paper on this very issue, as we discuss briefly in this blog.

Quick re-cap of the Unitary Patent and UPCA

The Unitary Patent Court Agreement (UPCA) is an international agreement creating a specialised patent court with exclusive jurisdiction for litigation over the "future" Unitary Patents and the longstanding European Patents (granted according to the European Patent Convention (EPC)).

The UPCA is to come into force once 13 EU member states have ratified it, which must include Germany, France and the UK. In April 2018, the UK government ratified the agreement (see our blog, UK ratifies Unified Patent Court Agreement today).

Currently 16 member states have ratified the UPCA including France, but crucially not Germany. German ratification has been delayed by an esoteric legal challenge to the UPCA in the German constitutional court, which began in 2017. The outcome of the challenge is anticipated at the end of 2019 or early 2020. However, according to recent press reports, the German Parliament has indicated that, regardless of the court's ruling, it will not ratify the agreement until the outcome of Brexit is clarified.

Think Tank paper

On 5 November 2019, the European Parliament Think Tank published a paper on the EU Patent and Brexit. (See press release.) This "in-depth" analysis attempts to clarify how Brexit may affect the entry into force of the UPCA, what steps the EU will need to take to ensure the functioning of the future Unitary Patent and whether the UPCA would have to be revised because of Brexit.

The paper looks in some detail at the history of the Unitary Patent and the UPCA, and then at the different positions presented by the UK government, European Council and European Parliament during the ongoing Brexit process. In relation to the UK government, the paper refers to the no-deal guidance note published by the UK Intellectual Property Office (IPO) in March 2019 where the government simply said: "We intend to explore staying in the systems with our European partners." (See our blog, No-deal, patents and SPCs, latest government guidance.)

(Note: Since the paper was prepared, this guidance note has been removed from the IPO's website, presumably after the UK government obtained a further Brexit extension in October 2019. Neither of the Withdrawal Agreements, negotiated by Theresa May nor Boris Johnson, respectively, mention patents. Nor is there any reference to Unitary Patents and the UPCA in the IPO's current version of its IP and Brexit online publication.)

Think Tank's conclusion

In its conclusion the Think Tank refers to the "somewhat mixed message" from the UK – on the one hand its recent ratification of the UPCA, contrasting with the current government's position that the UK should leave the EU Single Market and jurisdiction of the CJEU.

The Think Tank goes on to conclude that "it seems not per se legally impossible that the UK can stay within the UPCA, even when not an EU member state". Elsewhere in its conclusion it states that "maintaining the UK within the UPCA would need innovative legal solutions, as the UPC is an international court applying EU law…"

Comment

This paper does not really add much to what has already been said about the UK's continued participation in the UPCA following Brexit. However, it is helpful to have a thorough and up to date discussion of the different scenarios that might take place and to put Unitary Patents back in the spotlight (temporarily at least!). As always, we will continue to keep you posted…

Related Work Areas

Technology