One Year to Brexit - Are Rumours of the Death of the Unified Patent Court Agreement Greatly Exaggerated?

Mark Twain 1835-1910
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Jane Lambert

"James Ross Clemens, a cousin of mine, was seriously ill two or three weeks ago in London, but is well now. The report of my illness grew out of his illness; the report of my death was an exaggeration." (Mark Twain)

The last time I wrote about the Unified Patent Court and unitary patent I was pessimistic on whether the United Kingdom could remain a party to the Unified Patent Court Agreement after 29 May 2019 and also  on whether that agreement could survive the UK's departure (see What, if anything, can be salvaged from the UPC Agreement? 26 Jan 2018). On balance I am still pessimistic but I have not yet given up hope on either score.

There are four reasons for not giving up hope completely all of which have arisen since my last article:-
As for the British ratification, s.17 of the Intellectual Property Act 2014 inserted a new s.88A (1) into the Parents Act 1977 which enabled the Secretary of State to make provision for giving effect in the United Kingdom to the provisions of the agreement.  The Secretary of State exercised those powers to make The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 SI 2016 No 388 before the Brexit referendum. The privileges and immunities order in Council was the last legislative hurdle.

One of the stumbling blocks for continued British participation in the UPC has been the acknowledgement in the agreement of the primacy of EU law as interpreted and applied by the Court of Justice of the European Union. The government accepted a continuing role for the CJEU in the first phase of the Brexit negotiations in relation to the rights of citizens of the remaining member states after Brexit (see Jane Lambert A Continued Role for the CJEU after Brexit - A Sensible Concession 29 Dec 2017 NIPC Brexit). It may be possible to persuade it to make a further concession in relation to the UPC and unitary patent. Indeed EU law would continue to apply to the UK during the proposed implementation period.  It is unrealistic to expect the negotiators to reach agreement on the UPC agreement in the next 12 months but they might just pull it off before 31 Dec 2018.

Although the UPC's launch has been put on hold pending a challenge to German ratification in the German constitutional court there have been a number of positive signs. For example, the unitary patent was still on the agenda when Tim Moss and Sean Dennehey of the British Intellectual Property Office visited the European Patent Office to discuss recent developments in IP with  Benoît Battistelli (see Comptroller visits EPO 27 March 2018 NIPC News). The government has not yet assigned or surrendered its lease to the UPC's premises in London and, as I noted above, the Orders in Council enabling British ratification have been made.

Finally, we now know that the constitutional challenge to German ratification has been brought by Dr Ingve Björn Stjerna, an IP lawyer from Düsseldorf.  He  has helpfully described his legal challenge in Constitutional complaint against UPCA ratification in Germany (14/06/2017, latest update on 16/03/2018) and the parliamentary challenge to which I referred above in Status of the UPCA ratification proceedings in Germany (12/12/2016, latest update on 29/03/2018)It is not clear how long these processes will take but there is a fighting chance that they could be completed by 29 March 2019 and an even better chance that they could be completed by 31 Dec 2029.

Anyone wishing to discuss this article or the UPC or unitary patent generally should call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Other Updates

GDPR
28 March 2018  Jane Lambert  GDPR Primer for Companies, Teachers, Schools and Theatres  Terpsichore

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