The UK government has confirmed that, post-Brexit, the UK will not be part of the Unified Patent Court (UPC) or Unitary Patent (UP) system.
Currently, after the grant of a European patent, it becomes what is essentially a ‘bundle of national patents’. Obtaining these national patents is subject to varying translation requirements to validate the European patent in each of the European states of interest, and maintaining the separate patents requires paying separate renewal fees in each country. Patent infringement and revocation proceedings are also conducted at the national level, which sometimes leads to multiple lawsuits regarding the same European patent in different countries, and which sometimes leads to different results.
The proposed UP sought to replace the current system with a single patent right, removing the need for separate post-grant validation. It promised significant savings in translation costs and renewal fees, especially for patent holders who choose to validate in more than a handful of countries. The UP was to be governed by a uniform patent court litigation system, the UPC, which would issue a single court ruling that would then be applicable in all of the EU countries. The idea of the UPC was to harmonise EU law and avoid a patentee having to litigate the same European patent in multiple EU territories.
Although the UK ratified the UP and UPC initiatives in April 2018 and the UK government has consistently confirmed since then that it intended to seek to remain in the UPC after Brexit, the UK government has now confirmed that it will no longer participate in the UP or UPC systems. A government spokesperson said: “The UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”
While the UPC is not part of the EU, it is closely aligned and, as mentioned in the press release, decisions of the European Court of Justice will be binding on the UPC.
This decision by the UK government is perhaps unsurprising after the recent publication of the UK's negotiating objectives (published on 27 February 2020), in which paragraph 5 reads:
"It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU's, or for the EU's institutions, including the Court of Justice, to have any jurisdiction in the UK."
The fate of the UPC is now uncertain, as the UK was to be one of the leading players, having been designated to host the UPC’s pharmaceutical and life sciences division in London. Some UPC optimists hope that this is simply a negotiating ploy in the larger Brexit negotiations. Time will tell.
Brexit and IP
As the European Patent Office is not an EU agency, the UK leaving the EU does not affect the current European patent system. As such, European patents covering the UK are also unaffected. For other intellectual property (IP) rights, nothing will change straight away. This is because both sides have agreed to an 11-month transition period, which is currently scheduled to end on 31 December 2020 (though extensions may be granted). During this transition period, EU law will continue to operate as it currently does in the UK. At the end of the transition period:
the UK will transfer all registered EU trade marks and designs into equivalent UK rights
owners of pending EU trade marks or designs will have a period of nine months to apply for the same protection in the UK.