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Brexit doesn’t mean Brexit from the Unified Patent Court, says Government

Baroness Neville-Rolfe states UK will ratify UPC Agreement to get new court up and running.

The proposed Unified Patent Court is based on an intergovernmental treaty separate from the EU, but subject to EU law and to the jurisdiction of the Court of Justice of the EU (CJEU).  As a result, and following a previous CJEU judgment on the point, only EU member states can be members. Those non-EU countries that are members of the European Patent Convention (such as Norway, Iceland and Switzerland) are excluded.

Earlier this year, the Unified Patent Court had been expected to open for business in January 2017, having even taken a lease of a location in London for a local division and an important specialist branch of the central division dealing with cases relating to chemistry, including pharmaceuticals and life sciences.

The UPC Agreement, as it stands, is structured so as to require ratification by the three states with the most European patents in effect in 2012, being France, Germany and the United Kingdom.  As a result, the UK must ratify it despite being unable to continue as a party after it leaves the EU, or the Agreement will need to be amended.

When the UK electorate voted to leave the EU on 23 June 2016, these plans were thrown into disarray, pausing even the process of recruiting judges. Many had assumed the Agreement would be amended to exclude the UK, with the plans for the London central division branch relocated to another EU country.

However, today the UK’s Minister for Intellectual Property, Baroness Neville Rolfe, stated that the UK will in fact proceed with ratification to bring the UPC into operation as soon as possible: “…for as long as we are members of the EU, the UK will continue to play a full and active role.”

WAB Comment

Except perhaps for intellectual property lawyers, the future of the UPC was far from the most pressing concern that Brexit raised.  Although the referendum result was not legally binding, the current political debate relates to “hard or soft Brexit”: continued EU membership is not generally regarded as being an option. Given that full EU membership is a legal precondition of the UPC system, it is difficult to conceive of how the UK can continue to be a party after it leaves the EU.

The UK government states that Article 50 should be invoked by the end of March 2017 with Brexit occurring in 2019.  Even considering recent speculation that “transitional arrangements” might result in a longer-term process towards a final Brexit settlement, the UPC in London faces at best an uncertain future and, at worst, a purely temporary status.

Read the press release from the Intellectual Property Office and Baroness Neville-Rolfe here.  See all our previous UPC articles here.

Disclaimer: This article is produced for and on behalf of White & Black Limited, which is a limited liability company registered in England and Wales with registered number 06436665. It is authorised and regulated by the Solicitors Regulation Authority. The contents of this article should be viewed as opinion and general guidance, and should not be treated as legal advice.

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