On April 26, 2018, the United Kingdom has deposited the instruments of ratification of the Agreement relating to the Unified Patent Court (UPCA).
The Preparatory Committee of the UPC has confidently declared that this year has begun well, although there remains more work to do before the provisional application phase can commence – not least the outcome of the complaint against the UPCA pending in the German Federal Constitutional Court which will influence the speed of moving to the final stage of the project. See Committee full communication.
Actually, the announcement from the UK Intellectual Property Office and the statement delivered by the Minister for Intellectual Property, Sam Gyimah MP make clear that such ratification triggers another significant issue of the Brexit negotiations, rather than being a positively decisive event for the UPC. Namely, the UKIPO has pointed out that “the unique nature of the proposed court means that the UK’s future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU” (see full announcement). The Minister for IP has stated that “now we are well placed to make sure we turn the changes – which will be the central part of our exit – into opportunities. One of those opportunities is to make sure we continue to strengthen and develop the international IP framework” (see full statement).
In this regard, even the controversially optimistic opinion on consequences of Brexit for the UPC, given in September 2016 by Richard Gordon and Tom Pascoe (from Brick Court Chambers), pointed out that the UK would be required to accept the supremacy of EU law in its entirety as regards all patent disputes as fall within the jurisdiction of the UPC, and that this may be politically significant.
In fact, Art. 20 UPCA establishes that the Court shall apply Union law in its entirety and shall respect its primacy (see also Arts. 21 and 24 UPCA).
Even the UPCA will need to be amended as to (only apparently) formal provisions. For instance, Art. 1 UPCA establishes that “the UPC shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States”, but Art. 2 UPCS establishes that “‘Member State’ means a Member State of the European Union” and “‘Contracting Member State’ means a Member State party to this Agreement”. Another noteworthy amendment is required to Art. 7 UPCA, currently establishing that one section of the UPC will be in London.
Therefore, it appears that a Diplomatic Conference would be needed to introduce the possibility for the UK, after having left the EU, to be party to the UPCA.
Provided that the Court of Justice of the EU will not issue any decision against this possibility.
In the end, the ratification by the UK makes the start of the UPC provisional application phase closer, but it does not render the UK participation to the UPC more certain.
Unless the rising voices against leaving (e.g., see among others: Confederation of British Industry, 1, 2, 3; European Movement; Open Britain) will succeed in reversing Brexit.
Andrea Scilletta
