UK: The UK Backs The UPC And Unitary Patent

Last Updated: 12 January 2017
Article by Chris Thornham and Paul England

The UK government has recently indicated that it backs the UPC and Unitary Patent. That has ended some speculation about how or whether the UK would participate following the UK "Brexit" referendum decision of 23 June 2016 to leave the EU. On 28 November 2016, Baroness Neville-Rolfe, UK Minister of State for Business, Energy and Industrial Strategy, stated at a meeting of the EU Competitive Council that the UK will ratify the agreement on the UPC (which is a pre-requisite for the system to come into operation under the currently formulated inter-governmental UPC Agreement).

Although the UPC is not itself an EU body, it had been suggested CJEU Opinion 1/09 of 8 March 2011 indicated that all participants of the UPC and Unitary Patent system must be EU Member States. This had caused some concerns that if the UK ratified the UPC Agreement to allow the new system to start it would later be forced to leave upon the UK's exit from the EU. An alternative concern was that the system might go ahead without the UK (and its experienced judges) and require moving the Central Division for Life Sciences from London. However, since the 23 June 2016 referendum decision, a number of credible legal opinions, particularly from Germany, have suggested that Opinion 1/09 was misinterpreted. Instead, they argue, the legal framework of the UPC and Unitary Patent system can accommodate a post-Brexit UK with relatively modest amendments.

Aside from the legal issues, questions have been raised whether the UK can stay in the UPC as a political matter, post-Brexit. However, these may be overstated. The UK will continue to be a party to the European Patent Convention and participate in the EPO (both of which arise from inter-governmental agreement). The UPC and Unitary Patent system can be thought of similarly. If the UK is willing to be part of the system, including having the CJEU as the appellate court, it is submitted that it can participate. A challenge to that UK participation by some other participating state would appear politically unattractive, given the lobbying around Europe for the UK to ratify.

As a practical matter the UPC system is likely to be up and running for over a year by the time the UK actually leaves the EU. By then, the UK will be integrated into the court infrastructure; UK judges and staff will be working in the UPC system; and cases involving the UK will be in progress. It would be very disruptive to users to then try to carve out the UK.

Perhaps the biggest question now is "when will the UPC and the Unitary Patent come into force?" Some assistance in answering this question came on 14 December 2016, when the UK signed the Protocol on Privileges and Immunities of the Unified Patent Court. Amongst other matters, the Protocol provides EU privileges and immunities to the judges and staff of the Unified Patent Court in those countries hosting divisions of the court. This important instrument must be ratified by the UK together with the UPC Agreement before the UPC can open. It is understood that the UK, in conjunction with its Intellectual Property Office, is working to a timetable in which orders of ratification for the UPC Agreement and the Protocol will be presented to Parliament for approval in February/March 2017, leading to ratification of both instruments shortly afterwards. Once Germany then ratifies, assuming its stated intention to do so after the UK, the provisional period of the UPC will then begin. Parties can begin to opt-out European patents from the UPC system during this period, if they wish to do so.

The UPC and the Unitary Patent will start receiving cases on the first day of the fourth month after the final ratification. According to the above timetable this could be as early as the end of 2017, although it is unclear whether other processes, such as recruitment of judges and other staff, as well as preparation of court buildings and IT systems, will be ready by this time. Consequently, it is expected that the German ratification will be used to control the provisional period and "go-live" dates until the UPC system is fully ready.

Taylor Wessing has written and advised extensively on the subject of the UPC and Unitary Patent, as well as providing a series of webinars, news and practical guidance. These can be found on our UPC hub.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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