The UK Government yesterday announced that its plans to ratify the Unified Patent Court Agreement (“UPCA”) will not be derailed by Brexit. The UK Minister of State for Intellectual Property, Baroness Neville Rolfe, made the announcement at a meeting of the EU Competitiveness Council.
Europe has been contemplating a uniform patent system for decades. The unitary patent and the Unified Patent Court (“UPC”) were designed to provide an efficient system of patent protection and enforcement across the EU by creating a single patent that covered all participating states and a new court system to enforce such patents. From the outset, the UK was given a pivotal role in the system as one of three key countries required to ratify the UPCA before it could take effect and as the seat of one section of the Central Division of the UPC. Since the UK voted to leave the EU in the referendum held on 23 June 2016, speculation as to the UK’s role in the scheme and as to the future of the project as a whole has, naturally, been rife in the European IP community.
The Minister confirmed that “for as long as we [the UK] are members of the EU, the UK will continue to play a full and active role…but 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”.
The UK will now continue to prepare for ratification of the UPCA and will be working with the Preparatory Committee to bring the UPC into operation as soon as possible. In order to ratify the UPCA, the necessary implementing legislation will have to go through Parliament.
13 countries need to ratify the UPCA before it can come into force. The ratification of France, Germany and the UK (which three countries had the highest number of European patents when the agreement was concluded in 2012) is mandatory. So far, France (as well as 10 other countries) has ratified the UPCA. Ratification by the UK and Germany would therefore see the UPCA enter into force. Germany is expected to ratify the UPCA early next year.
It now seems that the coming into force of the UPCA, with a London Central Division branch for “human necessities” (including things such as pharmaceuticals and life sciences), is almost certain. It seems likely that the UPC will become a part of the patent system from 2017, most likely from the autumn.
Given the view of many that the UPC is an EU concept for EU countries, it is not clear how the system will work come Brexit. Despite this view, the official Government press release (available here) includes a note that the UPC itself is not an EU institution but an international patent court including UK judges. However, as it stands the system is only open to EU member states and the UPCA does not anticipate the effect of a member of the UPC leaving the EU.
It seems as though the Government has decided to keep its options open for the time being by ratifying the UPCA (rather than stating that it would not participate) and leave the thorny question of how the UPC would work for a non-EU member state for the future when it decides what its Brexit negotiating position is going to be. To exile itself from the UPC now, in isolation before the Brexit discussions have started, would perhaps have been foolhardy. The UK may be in a stronger position when negotiating its future relationship with the EU patent regime if it is an integrated part of the framework of the UPC.
Although the announcement is a positive indication of the UK’s commitment to unified patents and gives some reassurance that the UPC will come into existence in a similar form to that anticipated pre-referendum without having to renegotiate the UPCA, the uncertainty as to what will happen down the line may undermine some right holders’ confidence in the system. It is not altogether certain, for example, that the UK could lawfully be part of the UPC post-Brexit in the absence of a supplementary agreement as part of Brexit negotiations. The question of how the UK would exit the system should it be necessary is unclear as there are currently no provisions governing exit from the UPCA, meaning that the UK may well have to put this on the negotiating table come Brexit talks.
Right holders for whom the UK is a key jurisdiction may well be cautious about engaging with the UPC and unitary patents without such certainty as to the long-term future of the UK and the UPCA. Whilst the UK’s ratification will pave the way for the regime to launch, it may not be until the UK’s future relationship with the UPC, and indeed the EU in general, is clarified that it really gets started.