UK and the UPC
The UK is not expected to take part in the new European Unified Patent Court system despite previous ratification.
On 20 July 2020, the UK officially withdrew from the European Unified Patent Court (UPC) system.
The UPC is an ambitious piece of legislation, created with the intention of harmonizing patent law across the EU. This would provide patent protection via a Unitary Patent – as well as enforceability, validity and invalidity – across all of the EU Member States signed up to the Agreement. Alongside this Unitary Patent is a Unified Patent Court system which would decide on matters of patent validity and infringement.
The UK’s decision to withdraw from this initiative does not come as a surprise. As we reported in March 2020, the UK government had strongly indicated that it did not intend to take part in the UPC, based on its objectives for negotiating the UK’s withdrawal from the European Union.
This position was confirmed in the parliamentary statement announcing the withdrawal, which stated:
“In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation.”
It remains to be seen what consequences the UK withdrawal has upon the future of the UPC. The UPC preparatory committee intends to discuss the consequences of the UK withdrawal, and to agree a way forward.
There is nothing from a legal standpoint to prevent the continuation of the UPC; rather, the issues are more political. There will be a financial hole from the non-participation of the UK, which will need to be filled by one or more other countries, and some countries may find the UPC less attractive as a whole if the UK is not part of it, given that the UK is, along with France and Germany, one of the three most popular countries for the validation of European patents.
However, it seems unlikely that the other European countries would allow the entire UPC to collapse purely due to the withdrawal of one member. Too much time and effort has been invested in it to this point to allow that to happen.
That said, it is likely that the UK withdrawal will delay the beginning of the UPC. There are aspects of the law and procedures which were incorporated due to input from the UK in view of UK law, and some countries may want these to be amended.
Also, the UPC is to be divided into three Central Divisions, each with a focus upon a different scientific field. These were to be located in Munich, Paris and London. The London Central Division will now need to be relocated. There may therefore be a delay while it is decided where this Central Division is to be moved to. There will be competition for this, as several countries are actively expressing an interest in hosting this division, particularly Italy and France.
Of course, Germany is still yet to ratify the UPC Agreement, and the UPC system cannot begin until it does. If this does not happen, and Germany is also forced out of the UPC, then the future of the UPC may be put into doubt. However, it is expected that Germany will eventually ratify the Agreement.
However, if the UPC does proceed, it should be noted that all European Patent Attorneys based in the UK will be able to act before the UPC.
Also, the UK will remain a signatory to the European Patent Convention, so the process for obtaining European patents at the European Patent Office will remain unchanged.
If you have any questions about the UPC, or patents and intellectual property in general, please contact us.