Patents
Posted on 2/3/2020

UK and the UPC

The UK is not expected to take part in the new European Unified Patent Court system despite previous ratification.

The UK government has given a strong indication that it does not intend the UK to take part in the new European Unified Patent Court (UPC) system.

The UK’s participation in the UPC was always in question after the 2016 referendum in which a slender majority voted to leave the EU. Despite this, the UK subsequently ratified the UPC legislation in 2018, suggesting that the UK may still be willing to participate in the UPC.

However, the latest negotiating objectives just published by the UK government appear to take a large step towards distancing the UK from the UPC. In order to be part of the UPC, the UK would be required to accept EU law and decisions of the Court of Justice of the European Union (CJEU) in relation to patents, which the government insists it is not prepared to do.

Paragraph 5 of the UK’s negotiating objectives states:

It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK.

Therefore, subject to a significant change in government policy, the UK is highly unlikely to form part of the UPC, and European patents would continue to be validated in the UK in the same way as they currently are, alongside the UPC system.

This would very likely also mean that the central division court with a responsibility for life science cases, which was to have been based in London, will now be moved elsewhere in Europe. However, the Chartered Institute of Patent Attorneys (CIPA) has confirmed that British companies and SMEs will still be able to use the UPC if and when it comes into operation and, the rights of audience of British-based European Patent Attorneys will be unaffected by this decision (https://www.cipa.org.uk/policy-and-news/latest-news/government-tells-cipa-it-will-not-seek-to-be-part-of-the-up-upc-system/).

However, before it comes into being, the UPC legislation is still awaiting formal ratification by Germany. A requirement for it to come into effect was that the necessary legislation was ratified by at least 13 EU Member States – which has been achieved – which must include each of the UK, France and Germany. The UK and France have both ratified it. Howevera constitutional complaint was filed in Germany against the German Unified Patent Court Agreement Act, asserting that the UPC was incompatible withEU law. This has delayed the German ratification while the German courts consider the question.

If this complaint were to be upheld, then the future of the UPC would be in doubt. The final decision on this is still awaited.

If the UPC does go ahead, however, then the UK will almost certainly not be part of it. If you have any questions regarding the UPC or other patent issues please contact us.