Will a post-Brexit UK participate in the Unified Patent Court (UPC)?
At the time of writing this article it is not only the form of a future Brexit that is uncertain, but also whether the UK does actually leave the EU. Nearly two years after the UK’s referendum on EU membership, the UK parliament ratified the UPC Agreement, on 26 April 2018. However, the UK’s future participation in the UPC is uncertain. On the assumption that the UK does ceases to be an EU member state, this article considers the likelihood of the UK nevertheless participating in the UPC.
A clear hurdle to participation in the UPC is that Article 84 of the UPC Agreement limits signing and ratification to EU member states. It is unclear if this provision excludes participation by former EU member states which had ratified prior to leaving the EU, but the provisions on referrals to the CJEU certainly make continued participation by former EU member states more challenging. Annex II of that agreement which, in more optimistic times, named London as one of the seats of the UPC’s Central Division implies that non-participation by the UK will in any case necessitate some amendment to the signed UPC Agreement.
The UK government certainly appears to be positively disposed toward future UK participation in the UPC. In the Chequers White Paper of 12 July 2018 states that the UK will be “exploring options on intellectual property, including participation in the Unified Patent Court and unitary patent system”. Since then, recent statements by UK officials point to a continued political will for the UK to be part the UPC. The then UK minister for IP, Mr Sam Gyimah MP, in evidence to peers in the House of Lords Select Committee on the European Union on 13 November 2018, acknowledged that although there is some disagreement about what can or cannot be negotiated, he thought “that there is scope to negotiate our continued participation”. He added “It is not cut and dried legally, but I do not think that anything is cut and dried as far as our exit from the EU and carrying on in some of these institutions is concerned. There is a will, and we are determined to make sure that it works.” The minister implied that the role of the CJEU did not exclude UK involvement in the UPC: “I agree that the UPC is bound to follow EU law, where it is relevant, and can refer questions to the CJEU on the interpretation of EU law, as you rightly point out. However, the CJEU is not an appeal court of the UPC, which has its own court of appeal. I think that, when ruling on domestic cases, UK courts will not be bound to follow decisions of the CJEU or the UPC”.
Of course it is not just the UK’s political wishes that counts in any UPC negotiatin: what do EU member states think about continued UK involvement in the UPC? With German ratification of the UPC currently stuck in German constitutional court, the UK’s involvement may not currently be the main UPC issue. Some controversial opinions on post-Brexit UK in the UPC are nevertheless being circulated. According to one view, expressed by Matthias Lamping and Hanns Ullrich on 10 Sept 2018, research fellows at the Max Planck Institute, the UPC will be exclusively responsible for adjudicating in disputes on the new unitary patent, which “forms part of the judicial system of the EU” and the UPC must therefore exclude the UK, a view which contrasts with that of the UK minister. While it is probably true that the UK’s contribution to the UPC (and indeed to European IP) is valued by other European governments, and that non-involvement by the UK in the UPC would be lamented, it is difficult to predict the extent to which EU national governments would be to accommodate the UK in amending the UPC Agreement. If the wider Brexit negotiations foreshadow UPC negotiations proposed by the UK government, then EU states may take the view that they need to safeguard EU structures and that the UPC, although not an EU institution, is nevertheless part of the EU legal order.
2019 will no doubt provide further twists in the long UPC saga.