UK’s plan to ratify UPC despite Brexit

Prior to last year’s Brexit vote, the UK was on target to participate in the Unified Patent Court (UPC). The UPC will be a court common to the contracting member states of the European Union. It is intended to have exclusive competence in respect of civil litigation matters relating to classical European patents, European patents with unitary effect (when these become available) and supplementary protection certificates for products covered by European patents.

In addition to various local and regional divisions, the UPC is planned to have a central division in Paris, with sections in London and Munich dealing with specific patent classifications. London’s patent classifications are “human necessities, chemistry and metallurgy”.

The Brexit vote raised doubts about the UK’s ability to participate in the UPC because of the expectation that the UK will no longer be a member state of the EU once the Brexit process is concluded. However, in a statement last Autumn, the UK government confirmed that it was proceeding with preparations to ratify the UPC. In its most recent statement, the UK government announced that:

“The UK government has signed the Protocol on Provisional Application and is ready for that to commence to the timetable foreseen by the Preparatory Committee. It is planned that the UPC will open for business in December 2017.”

Although the UPC is open to accession only by members of the EU, it is not clear whether the UK’s exit from the EU would have the effect of expelling the UK from the UPC system. The UPC has no effect on national patents or domestic patent law; it is an international court that is ultimately bound by the Court of Justice of the European Union (CJEU). A compromise may yet be reached whereby the UK remains a member of the UPC (and contributes the widely-respected services of some of its Patent Court judges). In this scenario, judgments of the CJEU would be binding on the UK in respect of matters decided by the UPC, while its domestic courts would not be so bound.

Peter Gemmell

April 2017