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Government announces the UK will not participate in Unified Patent Court

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 IP.

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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Alexander Robinson
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