The Chartered Institute of Patent Attorneys (CIPA) and some other parties have requested an Opinion from Legal Counsel on questions relating to the legal consequences of Brexit on the UK’s participation in the Unitary Patent and the Unified Patent Court (UPC). It is hoped that this will improve understanding of whether the UK can join the UPC and remain a part of the UPC system after the UK leaves the European Union. In support of this position, the Opinion advises that it is legally possible for the UK to continue to participate in the Unitary Patent and the UPC Agreement after Brexit.
However, this would require the UK to enter into a new international agreement with the participating EU Member States; a number of amendments would need to be made to the UPC Agreement; and the UK would need to submit to EU law in its entirety as regards proceedings before the UPC. If it were legally possible for the UK to continue to participate in the UPC Agreement, then the Opinion finds no reason why the UK could not continue to host the Life Sciences/Chemistry section of the central division. It is however noted that, if the UK ratified the UPC Agreement without amendment and then subsequently left the EU, any divisions of the UPC operating in the UK would have to close.
The Opinion relates only to legal issues and, although it is positive that the UK could continue to participate in the Unitary Patent and the UPC Agreement, there are still significant political obstacles that would need to be overcome in order to achieve this.
It is clear that a great deal of consideration will need to be put into whether or not the UK ratifies the UPC Agreement in view of the implications of this action as set out in the Opinion. We will continue to keep a close watch on this and on all developments regarding the ramifications of the referendum vote.