28 February 2020
The British Government has announced that the UK will not
be participating in the proposed Unitary Patent and Unified Patent Court (UPC).
This puts an end to several years of speculation following the result of the ‘Brexit’
referendum in 2016.
This news was first shared by the UK’s BioIndustry
Association following a verbal communication from the Intellectual Property
Office, which had previously been working on the UK’s preparations for
implementation of the Agreement establishing the Unified Patent Court and the
Unitary Patent. It was then confirmed by a government spokesperson, according
to reports in publications IAM and Managing
The proposed Unitary Patent would have provided a single
patent covering multiple countries, as an alternative to the current European
system in which patent applications are validated on a country-by-country
basis. The Unified Patent Court would have provided a single pan-European
patent court system with divisions throughout Europe, with exclusive
jurisdiction over validity and infringement of unitary patents and – eventually
– exclusive jurisdiction over European patents granted for participating
countries via the current system too. A specialist part of the court’s
Central Division, responsible for chemical and biotechnological patents, was to
have been located in London.
Although the UPC Agreement is not formally EU legislation,
membership is only open to EU member states and the Agreement requires the court
to apply EU law insofar as it relates to patents; this includes, for example,
EU legislation relating to SPCs and biotechnological inventions. It also
requires the UPC to refer questions to the European Court of Justice (CJEU)
where questions about the interpretation of such legislation arise. Following
the Brexit referendum, there was therefore doubt as to whether the UK would
seek to continue to participate, and whether this was legally achievable.
Ultimately, it seems that the involvement of the CJEU,
however indirect, was a sticking point for the UK Government in view of its
stated desire to escape the CJEU’s jurisdiction entirely.
Following the UK’s announcement, the future of the whole
project may be in doubt in view of the UK’s importance as a major economic
centre with significant patenting activity, and a highly experienced and
respected IP judiciary which will no longer form part of the UPC system. At the
very least, a significant delay can now be expected while the consequences of
this latest version of ‘Brexit’ are digested and consequential amendments to
the UPC Agreement are considered. Another question mark is currently hovering
over the future of the UPC due to a legal challenge in Germany which contests
whether the UPC Agreement is compatible with the German constitution. A
decision in that case is expected later this year.
Whatever happens to the UPC, this will not affect the current European patent system administered by the European Patent Office (EPO). This is not an EU institution and Brexit does not affect the ability of UK-based patent attorneys to secure and defend patents at the EPO.
For more information on Brexit and its effects on IP, click here.
Alex has also provided his comments on this news story for Kluwer Patent Blog – click here to read the full article.
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