This topic has been actively under debate in the intellectual property community. An opinion commissioned by the Chartered Institute of Patent Attorneys, the IP Federation and the Intellectual Property Lawyers Association analyses what will happen to the Unitary Patent and associated Unified Patent Court as a result of Brexit.
The opinion provides a useful run-through of the system and then analyses the different options.
- The UK could continue to participate in the Unitary Patent but only if a suitable international agreement is reached.
- The UK could continue to participate in the UPC, but again, only if a suitable international agreement is reached.
- The international agreement needed would require strong political will and acceptance of the supremacy and uniformity of EU law in this area.
- This would involve:
- Respecting the supremacy of EU law in the area of patent disputes before the UPC, including EU laws like the Biotechnology Directive, and even non-patent laws such as competition law;
- A route to sue the UPC before the EU courts if it failed to comply with EU law;
- A route to make references on points of law to the EU court,
So, although theoretically possible, we query whether this can be achieved in the current political climate.
- If the UK carries on as a member benefiting from a new agreement, then the life sciences/chemistry division of the Central Court, could stay in London.
- If the UK ratifies the UPC Agreement and then leaves the EU without a further agreement, the London court would have to stop operating.
These conclusions hinge on the interpretation of a 2009 opinion on the compatibility of the UPC Agreement with EU law that was given before the Agreement was finalised. Following that opinion, the Agreement was revised and non-EU Member States removed. The opinion does not clearly say that non-EU member states cannot take part, but it is certainly possible to read it that way.
Meanwhile, Margot Fröhlinger, principal director of patent law and multilateral affairs at the EPO, has indicated that both the EPO and other member states would like the UPC to go ahead with the UK as a part of the system. An added advantage of developing this option would be that other non-EU members of the EPC could also potentially join, increasing the attractiveness of the UPC and Unitary Patent.
But with so many issues fighting to be top of the agenda for both sides of the Brexit negotiating table, the fear is that the European patent project will not gain enough attention to get all of the details tidied up in time. At the moment only ratification b the UK and Germany are required to bring the system into effect. The UK’s position on ratification is still unclear. But, neither is the German position on ratification clear, with some suggestions of reluctance in Germany to proceed with the project. Patent-holders should not count on the system becoming a reality for the UK or even the rest of the EU.