NO UK IN UPC
THE UK WILL NOT BE INVOLVED IN THE EU’S UNIFIED PATENT COURT
On 27th February 2020, the UK Government published its opening position for negotiations with the EU on the future trading relationship between the UK and the EU. This included an unequivocal statement that the UK will not accept any terms which will result in the European Court of Justice (ECJ) having any jurisdiction in the UK. Although this has long been a soundbite of politicians, such a clear statement in an official policy document will make this a very difficult position to roll back from.
This signalled the end of any hopes that the proposed European Unified Patent Court and Unitary Patent might ever take effect in the UK. The UK had ratified the relevant agreement during the period after the 2016 Brexit Referendum, and there were hopes that there could be continued involvement in the system even once the UK was no longer an EU country. However, since the ECJ is the ultimate appellate court in the system, so the current UK Government has confirmed that the UK will not be involved in the system.
Whether the system can go ahead at all, even without the UK, is also in doubt. In the wording of the Agreement, ratification of UK, France and Germany was necessary for the system to take effect. Although the UK did ratify the agreement before it left the EU, whether this would still be considered effective for bringing the system into effect remains to be seen. Even if German ratification is approved after an ongoing court review, and the system takes effect, it will remains to be seen whether the system is attractive to users without the large and important jurisdiction of the UK.
If this long-awaited system ever does take effect, applicants applying for a patent via the European Patent Office will be able to select the option of a European Unitary Patent at the point of grant, covering countries which are part of the system. National validation of the patent will continue as normal for the UK and other European Patent Convention states which are not part of the unitary system. Furthermore, our European Patent Attorneys (a status which is unaffected by the UK’s departure from the EU) will have rights of representation before the new Unified Patent Court. This, as well as our ongoing friendly relationships with attorneys across the rest of Europe, ensures that we will remain in a position to represent our clients’ best interests up to the highest levels.