The UK government announced on November 28, 2016 that it will
proceed to ratify the Unified Patent Court Agreement (UPCA). The
announcement comes after months of uncertainty over the future of
the UPCA following the UK's vote in June to exit the EU
(Brexit). The purpose of the UPCA is to establish a single unified
court (Unified Patent Court) with exclusive jurisdiction over
patent enforcement and validity actions in all contracting states.
The UK plays a key role in the current form of the UPCA. For the
UPCA to come into effect, 13 states of the EU (including the UK,
Germany, and France) must ratify the UPC Agreement. So far, eleven
states have ratified, including France. Germany, the UK, and
several other EU states were expected to ratify in the spring of
2016 before the Brexit vote threw the feasibility of the UPCA in
question. The UK is also designated to be the seat of the Life
Science/Chemistry branch of the central division of the Unified
Patent Court. The UK's ratification of the current agreement
will pave the way for the UPCA to proceed with minimal delays.
However, questions remain about the UK's post-Brexit role in
the UPC. In its current form, the UPCA restricts participation to
member states of the EU. The Court of Justice of the European Union
(CJEU) previously issued a decision ruling against participation by
non-EU members in an earlier draft of the agreement. However, the
decision was opaque in its reasoning, and it remains unclear
whether the CJEU would relax the membership requirement to allow
participation by the UK post-Brexit, or whether the UK will be able
to negotiate around this requirement. Moreover, in its current
form, the UPCA elevates EU patent law over national (UK) patent
law, an aspect that is likely to be a sore point during
negotiations. In announcing the decision, UK Minister of State for
Intellectual Property, Baroness Neville Rolfe, noted that "the
decision to proceed with ratification should not be seen as
pre-empting the UK's objectives or position in the forthcoming
negotiations with the EU."
Following the announcement, the UK will continue working with
the Preparatory Committee for ratification over the coming months.
A link to the decision can be found here.
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