After the smoke has settled on the battlefield, the generals generally tend to have a clearer view. This however is not the case with the UPC after the Brexit bombshell. The Brexit vote has left an entire continent in limbo, but what are the actual possibilities for the UK to stay in the UPC and when might we know?
From a legal perspective, in order for the UK to adopt the UPC, the UK needs to perform at least two acts, firstly, pass the UPC Protocol on Privileges and Immunities in the Parliament and, secondly, ratify the UPC agreement.
Firstly, The UK Intellectual Property Office published on 2 August 2016 Facts on the future of intellectual property laws following the recent Referendum decision. A quote from this announcement reads: “The UK remains a Contracting Member State of the Unified Patent Court at present. We will continue to attend and participate in UPC meetings in that capacity. There will be no immediate changes.”. This could imply that at least the first point may be on its way, or at least will not be hindered by the Parliament.
Secondly; it appears that a faction believes that, in theory at least, it is still possible for the UK to ratify the agreement so as to initiate the UPC during 2017 (only EU member states may ratify the agreement according to Article 84 UPC agreement). Benoît Battistelli, President of the EPO, states on his blog of 11 July 2016 that this could give the UK a better position during the Brexit negotiations and possibly persuade the member states of the UPC that the UK may be permitted to stay even after a Brexit takes effect. This makes sense as it would appear to be irrational not to use any available leverage. It is also a fact that the withdrawal negotiations will most likely be finalized during the 7 year transitional period for the UPC (which may be prolonged by another 7 years) enabling the courts of the UK to retain jurisdiction on patent cases during this period. Ultimately, it is a matter of negotiation and the will of the member states of the EU, as the UPC agreement will need to be redrafted. There is however always a risk that the UPC ratification will be used as a playing card during the actual Article 50* negotiations.
Former Prime Minister Cameron said in a speech to the Parliament that the UK would not invoke the Article 50 until the UK was clear about what kind of relationship the UK would like to have with the EU. But how long will that take? In the light of the Article 50, it is presently not fully clear as to whether the UK can trigger article 50 without parliamentary approval. The High Court will address this question this autumn. Should the High Court find that Parliament does need to vote on the matter, it appears that invocation of Article 50 may be delayed even further. Conservative peer Lady Wheatcroft recently stated in an interview with the BBC on 1 August that this may indeed be the case as a majority of the Lords appears to be in favor of the UK staying in the EU. It would thus appear that the ratification and implementation of the UPC agreement is very much a political issue which cannot be fully overviewed at this stage.
To sum up; the political climate with respect to the UPC in the UK is like the summer weather in Gothenburg - it is rather cloudy. Even if one of the two points mentioned above are carried out within the near future, it would appear to take some years at least before we actually will be able to tell if the UK will be a long-term committed partner of the UPC or not. A new question then arises: will the EU carry on with the UPC without the UK? Most probably, but that is for the next article.