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
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
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
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