After months of argument and speculation, the people of the UK have voted to leave the (European Union) EU in a national referendum. This begs two immediate questions: can the UK remain a participant of the Unified Patent Court (UPC) and the Unitary Patent system; and, will the system now go ahead at all?
Although the people of the UK have expressed the wish to leave the UK, this must first be formally notified to the EU Commission under Article 50.2 of the Lisbon Treaty. The Government has said this will not happen for at least 3 months, as it organises its approach to unwinding membership of the EU and a new Prime Minister is appointed. A negotiation process must then follow the notification in which "the Union shall negotiate and conclude an agreement with [the UK], setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union". European law ceases to apply to the UK two years later, subject to an extension. It is unclear what settlement the UK will seek from the Council during this two year period, although it can be expected to seek a free-trade deal of some form.
Would the UK still ratify the UPC Agreement and the Unitary Patent, despite the referendum result? This would be necessary if the UPC is to maintain its current timetable for coming into force. If the UK did ratify, along with the ratification of Germany and one other EU Member State (most likely to be the Netherlands), this would complete the thirteen ratifications necessary to bring the court into force. The UK could then, theoretically, participate in the court for the duration of the two year negotiation period while the UPC Agreement is reformulated to allow the UK's participation as a non-EU Member State once it has exited the EU. However, even if this is legally possible, ratification will be politically difficult for the UK. This is because the UPC and Unitary Patent system is subject to the jurisdiction of the Court of Justice of the European Union (CJEU). Ratification would therefore require the UK to submit to CJEU authority in circumstances where this has seemingly just been rejected by the people of the UK.
If the UK does not ratify, there is again the possibility that the UPC and Unitary Patent system is reformulated, in parallel to the UK's exit negotiations, in order to include the UK (and perhaps other countries that are not EU member states but EPC contracting states). Proposals for such a possibility are already circulating. However, these encounter the same difficulty that the UK's participation would require it to submit to CJEU authority.
If, for the above reasons, the UK is unable to participate in the UPC and Unitary Patent, these will again require reformulation to exclude the UK. A Member State participating in the court will also need to be found to host the 'life sciences' section of the central division. The location of the central division had been a contentious issue before the UPC Agreement was signed and the decision to split the division between three countries was a political compromise. Therefore, this issue may not be resolved quickly. However, it is likely that these issues would be resolved ready to be agreed at the time of exit of the UK from the EU, perhaps at the end of 2018 or the beginning of 2019.
In summary, without the ratification of the UPC and Unitary Patent by the UK, the project faces delay of at least two years.
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