The UK government has confirmed its intention to push ahead with preparations to ratify the Unified Patent Court Agreement. The announcement has taken observers by surprise, given the mixed signals that it sends about the UK’s desire for closer co-operation with Europe and the stated intention of the government to withdraw from the EU.
As recently as October 2016 Prime Minister Theresa May said:
“We are going to be a fully independent, sovereign country – a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts.”
It is hard to reconcile this position with ratification of an Agreement which says that:
“The [Unified Patent] Court shall apply [European] Union law in its entirety and shall respect its primacy” (Art. 20) and that “the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law… Decisions of the Court of Justice of the European Union shall be binding on the Court” (Art. 21).
As matters stand, only Germany and the UK need to complete ratification in order for the Unitary Patent and Unified Patent Court to come into being. Under the new regime, businesses will be able to protect and enforce their patent rights with a single patent and through a single patent court across 25 countries, and that Court will ultimately have jurisdiction over all infringement and validity proceedings relating to European patents in the participating countries.
A further issue down the line is that, in its current form, the UPC Agreement requires the court to have one of the three sections of the central division in London, and this requirement is explicitly stated and independent of the continued participation of the UK in the system post-Brexit. Whether the UK can continue to participate post-Brexit is a matter of debate both in terms of the legal position and from a political standpoint, and we expect that some member states would not be happy to see a central part of the UPC court system located outside the EU and perhaps even outside the court’s own jurisdiction.
Brexit has posed more questions than answers so far. It remains to be seen if ratification of the UPC Agreement is intended to signal a softer Brexit (if so, it seems an odd place to start for such a momentous issue) or whether the UK government is increasing its leverage for the coming negotiations, in other words, sending the first shots in a phony war that will play out over an extended period. Either way, all eyes will be on the ratification processes in the UK and in Germany in the coming months.