European Union countries have spent over forty years attempting
to establish, in one form or another, a unitary patent that would
take effect across multiple EU countries and a common court for
patent disputes. The historical proposals foundered for various
reasons, including the failure of sufficient states to ratify the
relevant agreement, language disputes, and the proposed system
being held by the Court of Justice of the EU (CJEU) to be
incompatible with EU law. Then, in 2013 it looked like the deadlock
had been broken when 25 of the EU states signed the Unified Patent
Court Agreement (UPCA) and two related EU regulations to provide
for a new Unified Patent Court (UPC) and a unitary patent that
would take effect in all participating countries. Even this latest
attempt had to be forced through by means of the EU "enhanced
cooperation" mechanism, which allowed the 25 EU states to
proceed despite the objections of Spain and Italy.
To enter into force the UPCA must be ratified by 13 countries,
including Germany, France and the UK. To date 10 countries have
ratified, including France. Ratification by Germany and the UK and
at least one other country was widely expected to take place in the
autumn of 2016, meaning that the new system would have started at
the beginning of 2017. The UK, for example, had already enacted the
necessary domestic legislation to prepare for the UPC and had taken
out a lease on the building that was proposed to house the local
division and the London branch of the central division of the new
However, the UK's referendum on its EU membership on 23 June
2016 and the result in favour of withdrawal from the EU means that
it is highly questionable whether the UPC and unitary patent will
now happen, at least in their current form. But first of all, it
should be noted that withdrawal from the EU with have no effect at
all on the UK's status as a contracting state to the European
Patent Convention (EPC): European Patents covering the UK will
continue to be granted by the European Patent Office just as
So far as the future of the UPC is concerned, there are a number
of possibilities. Optimists can point to the fact that, for the
time being, the UK remains a full EU member and it therefore could,
in theory, ratify the UPCA before it leaves the EU. If Germany and
one other signatory state also ratify the UPCA, it will come into
force four months later. Transitional arrangements could then be
made for the UK's withdrawal – as the system presupposes
that all participating countries are EU members. The London branch
of the central division could be dissolved, with its work being
split between the other branches of the central division, namely
Paris and Munich, or the London branch could be moved to another
country, such as Italy or the Netherlands. However, the UK
Government does not currently appear to favour ratification. In
particular, it would need to be satisfied that it was more in the
UK's interests to have a functioning UPC without the UK than no
UPC at all.
The very optimistic can hope that a way may yet be found that
would enable the UK to participate in the UPC from outside the EU.
Given that the present constitution of the UPC requires the court
to recognise the supremacy of EU law it is hard to see how this
would be politically acceptable to the UK. It might be possible to
conceive of a revised structure that would allow the UK (and
perhaps other EPC but non-EU countries, such as Norway and
Switzerland) to participate in a common patent court system but the
CJEU would need to be satisfied that any revised system was
compatible with EU law. Even if such a revision could be done, it
will take a considerable amount of time, as it will no doubt depend
on the terms of the UK's future relationship with the EU and
that will take at least two years to determine.
The two most likely scenarios are accordingly either that the
UPC and unitary patent will simply fail to take effect for want of
ratification by the requisite number of countries, just like the
Community Patent Convention in the 1970s, or the remaining UPC
countries will negotiate a new UPC Agreement that writes out the
UK. The latter option, if it happens, will again take some
considerable time and threatens to re-open disagreements over
issues such as the location of the central division of the court
and the language rules. It is also unclear whether a European
unitary patent that did not cover the UK would be commercially
For the foreseeable future it is therefore back to business as
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