Brexit one year on: The Unified Patent Court

United Kingdom

The Unified Patent Court (“UPC”) has been edging closer to reality in recent years and the UK was set to play a major role. The UPC aims to provide an easier and more cost-effective way to protect and exploit patent rights in Europe, and patents in the life sciences space are to be reserved to the ambit of the Central Division in London, reflecting the UK’s leading role in the life sciences. But how will Brexit impact the UPC and life science companies’ behaviours?

All but three EU Member States have agreed to join the UPC, giving patentees the opportunity to apply for a single pan-EU Unitary Patent covering 25 EU Member States. The UPC agreement (“UPCA”) must be ratified by 13 EU Member States to take effect. This group must include the UK, Germany and France.

The impact of Brexit on the UPC will greatly depend on the will of these three principal stakeholders. The UK government has made clear in its Brexit policy paper that it will bring to an end the jurisdiction of the CJEU in the UK. After Brexit, EU treaties will cease to apply to the UK, so it is not clear – legally or politically – how the UK could stay involved and potentially still be subject to the jurisdiction of the EU courts.

The UK government has confirmed on multiple occasions it will ratify the UCPA, but earlier this month it was announced that the timetable for implementation of the UCPA had been delayed by the UK general election and lack of agreement on protocols. The election and the consequent dissolution of parliament mean the UK has not approved the remaining legislation needed for ratification of the UCPA. Assuming the UPCA is ratified by the UK, the UPC system is generally expected to begin in early 2018.

Should the position change, the UPC will be a less attractive option for life sciences companies, because it would mean that they would also need to commence national proceedings in the UK in order to enforce or revoke patents across Europe.

London is one of the three intended locations for the court’s Central Division, but many questions remain over the future of a London-based court. After Brexit, will the EU leave a prestigious EU institution sitting in a non-EU country? If the UK finds a way to continue to participate in the UPC after Brexit – which is far from certain – then possibly the court will remain, and life sciences companies would litigate patents that cover the entire EU in the London court.

With creative thinking and negotiation, the advantages for the life science sector of a UPC including the UK might still be achieved, and the role of London consolidated and then magnified. Whatever the future, however, legal certainly must be achieved quickly to allow industry to plan an IP strategy which protects corporate value.

 

Co-authored by George Bentall, trainee solicitor.