In the grand scheme of things, perhaps the impact of Brexit on the UPC is not at the top of the list of most people’s concerns. After all, the UPC doesn’t actually yet exist. But the IP community will want to know what is likely to happen next. The short answer is a pause for breath, but the real questions are for how long, and what then?
As matters stand the UK cannot be in the UPC if it is not in the EU. This has in effect been decided already by the CJEU. But despite the vote to leave, we are still in the EU today, and will remain in the EU for at least two years after we give notice of intention to leave, which it now seems may well not be until October. That two year period can be extended by agreement of all 28 states.
It is theoretically possible that the UK could, while still an EU member, ratify the UPC, enabling it to open in 2017, and it is even possible that the London branch of the Central Division could open its doors, but that all seems politically highly unlikely. If the UK takes no further part the other countries could negotiate an amended agreement, which will require agreement on the location of the work which had been destined for the London branch.
The Unitary patent will become less attractive and the fees both for that and in the court may need review to reflect the lower values involved. It had seemed that English would be used in many UPC proceedings, that being the language of the majority of European patents (and of the majority of the available art). The Swedish/Baltic division has said it will operate in English only, for example, and yet none but the Irish (if Ireland ratifies the UPC Agreement) will have English as their mother tongue.
Much of the UK’s IP law is currently based on European directives and the SPC is a European right. Whilst many believe that the drafting of a UK SPC right could only be an improvement on the current Regulations, we can anticipate developments in UK IP law across the board.
The UK, as the world’s fifth largest economy, will remain a key jurisdiction for high value and/or strategically important patent litigation.