AIPPI's standing committee on the UPC and unitary patent (chaired by Alan Johnson) held a session on Brexit and the UPC at the AIPPI Annual World Congress in Milan today, providing the first opportunity for a public discussion on this vital issue since release of an opinion from UK counsel (here). The panellists were Margot Froehlinger (EPO) and Thierry Sueur representing Business Europe as well as Clemens Heusch from Nokia expressing an alternative industry perspective, and Daniel Alexander QC providing a UK view.

It was quite clear from the debate that not only will the pressure for UK ratification of the UPC Agreement continue, but that a decision is wanted within weeks. Despite universal agreement that the UPC would be better with UK participation, there is an unwillingness, in some quarters at least, to wait for the UK. Dr Froehlinger said that under the EU principles of sincere cooperation, the UK should either ratify or withdraw from the UPC Agreement. She said that under streamlined procedures other countries could make modest amendments to the existing Agreement and re-ratify quickly - within months - and hence go ahead without the UK. Thierry Sueur believed the unitary patent and UPC system to be important for innovation and growth in Europe. In such a new regime London would lose the pharmaceutical branch of the UPC’s central division, but Dr Froehlinger would not be drawn upon whether the political negotiations on the fate of this branch (which city or cities would host it) would involve only France and Germany, or other countries, nor would she speculate on how long such negotiations might take.

Given the goodwill toward UK participation, Daniel Alexander thought it unfortunate if other countries would not give the UK more than a few weeks to decide, and Clemens Heusch also thought that the timing was not vital compared with the benefits of UK participation.

There was recognition that the political reality is that UK ratification is very difficult, and from this discussion one can only conclude that within a matter of weeks we will reach a crunch moment when we will see whether or not there really is a move by the remaining states to move forward without the UK.