Giving evidence before the Science and Technology Select Committee on 11 January 2017, Jo Johnson MP announced that he had been appointed Minister for Intellectual Property. He takes over the role from Baroness Neville-Rolfe who has held the position for two and half years until late 2016. Mr Johnson is the younger brother of Foreign Secretary Boris Johnson.
Mr Johnson's appointment comes at a turbulent time for intellectual property where a number of uncertainties remain in the wake of the Brexit vote. Of particular interest is the UK government's position regarding the Unified Patent Court ('UPC'), the status of which was thrown into uncertainty following the referendum last June. However, in November 2016, Baroness Neville-Rolfe announced at the Competiveness Council of the European Union that the UK government was proceeding with preparations to ratify the UPC Agreement – a step which, at present, is one of the final hurdles to be overcome before the regime comes into force.
During the Select Committee meeting, Mr Johnson stressed the government's position stated in November 2016 that it is important that the UK participate in the UPC as it has value to British business and the UK wanted to be there at its creation. He noted that this was possible because the UPC was not an EU institution and that the ratification of the UPC Agreement was independent from the UK's status as an EU Member State.
Whilst this is correct (the UPC Agreement is an international treaty), the Unitary Patent Regulation is an instrument of EU law based on the Treaty on the Functioning of the European Union. Furthermore, the Regulation provides for references to the Court of Justice of the European Union for interpretation of points of Union law. This means that participation in the UPC goes hand-in-hand with being subject to the jurisdiction of the CJEU – something that many supporters of Brexit consider to be a "red-line" – albeit this jurisdiction was not intended by the framers of the UPC regime to provide CJEU control over the majority of substantive patent law.
When pressed on the status of the UPC, Mr Johnson suggested that the status of the UK within the UPC post-Brexit, and the status of the London central division, would form part of the wider Brexit negotiations. The UK government therefore seems to be doing what it can to enable to the UPC to come into effect sooner rather than later, and to rely on the Brexit negotiations to ensure continued UK participation in the regime.
For many businesses, the re-iteration of the government's position by the new IP Minister that the UK is going to support the UPC will be welcomed, not least because following the Brexit referendum its future had become very uncertain. However, uncertainty as to the status in the UK of rights derived from the UPC system will remain for some time, at least until the Brexit negotiations begin in earnest or perhaps are concluded. With fundamental issues such as free movement of people and access to the European single market at stake, the UPC is unlikely to be given a central role at the negotiating table.