The UK government announced plans yesterday (28 November) to ratify the Unified Patent Court (UPC) agreement and set up a divisional court in London despite fears Brexit would halt negotiations.
In her announcement, IP Minister of State Baroness Neville-Rolfe said: “for as long as we are members of the EU, the UK will continue to play a full and active role”, but she added: “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 continue with preparations for ratification over the coming months working with the Preparatory Committee to bring the UPC into operation as soon as possible.
Brexit fears allayed?
While many businesses in the UK and EU will welcome the news, there is concern over the impact of Brexit on the agreement and question marks over what will happen moving forward. The UPC agreement clearly states that it is only open to accession by EU member states, and “not open to states outside of the European Union”. In addition, the court would be required to accept judgements by the Court of Justice of the European Union (CJEU).
What is the Unitary Patent?
The concept behind the Unitary Patent is to provide a mechanism in which a single patent can cover all EU participating member states and where patents can be enforced across a broad region via a single court action. The Unitary Patent Package is far reaching and requires a completely new court system, the Unified Patent Court, to be established across the EU. Under plans, prior the Brexit vote, the UK was to host a specialist divisional court (competent for hearing cases in specific fields of technology according to the IPC: A, C - Chemistry and Life Sciences), as well as a Local Division. It seemed likely that these courts would no longer go ahead following the vote. (Find out more about the Unitary Patent and the Unified Patent Courts in our Unitary Patent FAQs.)
What happens next?
Article 50 of the Treaty on the European Union requires a member state that wishes to withdraw from the EU to notify the European Council of its intention to secede. The referendum result in itself does not constitute such a notice, so the process of exit is not yet officially underway. Once the notice has been served, a withdrawal agreement between the UK and EU will then need to be negotiated – the process of withdrawal itself could take up to two years (longer if the remaining member states agree to extend this period).
There is no clarity yet on what exit will mean for future trading arrangements in the EU or the UK's involvement in the European single market. These issues (and others) will only become clear once negotiations progress.