Implications of Brexit on IP – developments with the Unified Patent Court
Businesses with international patents will be concerned about the potential impact Brexit may have on the UK’s membership of the Unified Patent Court Agreement (UPCA).
The purpose of the UPCA is to establish a single unified patent court (UPC) system for resolving certain types of patent disputes within participating Member States. Under the current system, patent disputes are heard by the national courts of the state in which the patent is registered. The effect of this is that where a patent is registered in multiple states, separate proceedings may be started in multiple Member States, thereby creating the risk of inconsistent judgments – the Samsung v Apple disputes being clear evidence of this. The UPC system would see divisions of the UPC operating in Member States, following a common set of rules and jurisprudence.
The UK has been one of the driving forces behind the creation of the UPC, but the UPCA will only enter into force if the UK ratifies it. If the UK ratified the UPCA in its current form then subsequently left the EU, divisions of the UPC based in the UK would have to cease operating. A legal opinion was recently sought from leading UK Counsel by a group of 20 law firms, the IP Federation and the Chartered Institute of Patent Attorneys in an attempt to obtain legal clarity over the possible options. The conclusion of the legal opinion was that it is possible for the UK to remain part of the UPC after Brexit, but it would need to overcome a substantial number of obstacles to do so, including entering into an international agreement with the EU and Member States and a willingness to respect the primacy of EU law in this area.
The Government has however made two recent moves which seem to indicate that the obstacles to UK membership of the UPCA would not be insurmountable: signing the Protocol on Privileges and Immunities of the UPC, and confirming last week that the UK IPO is aiming to present orders for ratification to parliament in Q1 of 2017.
The Protocol gives UPC judges in countries hosting divisions of the court, of which the UK is one, EU privileges and immunities. Questions still remain over how the UK and the UPC will interact going forward and the broader primacy of EU law (the Protocol relates only to judges) but it does at least demonstrate willingness on the part of the UK government to accept EU authority in the UPC following completion of the formal Brexit procedure.