Last year, this blog brought news of the impending Brexit vote and the supposed impact of Brexit on intellectual property laws in the UK. Brexit was thought to have largely no effect on patent law because European and UK patents are governed by the European Patent Convention (EPC) which is a non-EU agreement. Further, the European Patent Office which overseas European patent prosecution is a non-EU body. However, a UK government cabinet official recently announced a decision to back out of Europe’s Unified Patent Court, which may have long-lasting effects.
The Unified Patent Court (UPC) is a proposed common patent court open to contracting member states of the EU to hear cases regarding infringement and revocation proceedings with a single court ruling being directly applicable throughout the member states. This court was established by the Agreement on a Unified Patent Court, an intergovernmental treaty, signed in 2013 by 25 of the EU states. The UPC applies EU law and is bound by the Court of Justice of the European Union (CJEU) like any other national court. Even with Brexit, the thought was that the UK would still remain a part of the UPC while not a part of Europe. Boris Johnson (somewhat ironically) as foreign secretary under former prime minister Theresa May, ratified the UPC agreement in 2017. And as recently as November 2019 a Minister of Universities, Science, Research and Innovation publicly confirmed the UK’s commitment to harmonizing intellectual property policy. London was due to be the location of one of three main patent courts and host the UPC’s pharmaceutical division.
However, this announcement does not come as a total surprise. Participating in the UPC system would be participating in a court system that applies EU law and is bound by the CJEU and is inconsistent with the aims of Brexit, which is to restore independence from the EU.
Updates will be provided with regard to the future of the UPC and how the remaining member countries move forward.