Despite uncertainty about the UK’s post-Brexit position in the Unitary Patent (UP) system and the German constitutional compliant against the Unified Patent Court Agreement (UPCA), several steps leading towards UK ratification of the UPCA have been taken over the last weeks.

The House of Commons approved the draft Unified Patent Court (Immunities and Privileges) Order 2017 on 4 December, after the Sixth Delegated Legislation Committee of the House had discussed and approved it on 29 November 2017. The draft Order will be discussed today by a ‘Grand Committee’ of the House of Lords. In the upcoming weeks, the House of Lords is expected to approve the Order without debate as well.

The Immunities and Privileges Order and a similar Scottish Order will confer legal status on the Unified Patent Court, as well as providing a limited set of privileges and immunities to the court, its judges and staff. The Orders are the last pieces of draft legislation which must be passed before the UK can ratify the Unified Patent Court Agreement. Legislation to amend the UK Patents Act 1977, to give effect to the UPCA and EU legislation on the Unitary Patent, were already approved by both Houses of Parliament in 2016.

The similar Scottish Order (The International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017), was approved by the Parliament at Holyrood last October. Both Orders will have to be put before the Privy Council for final approval. According to a Bristows report, this may happen at the last meeting of this year, scheduled for mid-December, but more probably at a meeting in January 2018. ‘After that the UK will be in a position to ratify the UPC Agreement.’

In the Sixth Delegated Legislation Committee, Jo Johnson, Minister for Universities, Science, Research and innovation explained last week that his government thinks the UP system is important: ‘The Unified Patent Court will offer a way for innovative businesses to enforce or challenge patents in up to 26 European countries with a single court action. The ability to obtain a single judgment is significant and valuable for patent-intensive industries. Independent research shows that approximately a quarter of all patent cases heard in UK courts were litigated between the same parties in other European jurisdictions, so a single unified patent court is welcome. An important division of the court, dealing with disputes in the field of pharmaceuticals and life sciences, will be based here in the UK, cementing our global reputation as a place to resolve commercial legal disputes.’

Johnson stressed the UK definitely wants to stay in the UP system post-Brexit: ‘To be clear, the UPC itself (…) is not an EU institution, but currently all participating member states are EU member states. Our position is that while the UK remains a member of the EU, we will and should complete all necessary legislation, so that we are in a position to ratify the agreement.’ (…) ‘After we leave the European Union in March 2019, we understand that we will have to negotiate a new relationship with the UPC. We want to do that as seamlessly as possible so that businesses can continue to take advantage of the provisions that the UPC makes possible.’

‘We do not want any cliff edges. We want minimum disruption for businesses, and we want to minimise threats to stability as we develop the deep and special relationship with the rest of the EU that we have set out as our objective for the negotiation. Of course we will take into account the need to protect intellectual property rights as part of the process of considering the options for the UK’s intellectual property regime after our exit, but as I have said on a number of occasions, our future relationship with the UPC will be a matter for negotiation. It would not be appropriate for me to set out unilaterally what the UK’s position will be in advance of those negotiations.’

In answer to a question about the German constitutional complaint, which could delay by years or even derail the creation of the Unitary Patent system, Johnson said: ‘We understand that there are issues in other countries whose ratification is necessary; we hope that they can be overcome so that this court can come into existence and do the job we all want it to do.’

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  1. Despite carefully avoiding providing direct answers to direct questions, it is actually possible to read between the lines and thereby divine some meaning from Jo Johnson’s waffling.

    Firstly, the UK wants to be “in a position to ratify” but is not actually promising to deposit its instrument of ratification.

    Secondly, the UK wants to stay in the UPC post-Brexit but has no idea how or even whether this will be possible.

    I’m not sure if this really counts as ratification “progressing steadily”. To me, it seems more like the UK saying that it does not want to be the one to turn off the UPC’s life support machine.

  2. One can guess in which camp the writer sits.

    If the minister himself has doubts about a post-Brexit stay of the UK in the UPC, the rest of the blog can be dismissed as being no more than a straw UPC supporters in the UK hang on, hoping it will save their creation.

    How can uncertainty be less than at the moment. Investors hate uncertainty, but rather to continue following a dream, it appears advisable to look at the truth: the UPC might not survive the winter.

  3. The question of UK ratifying the UPCA has become somehow irrelevant today with the exceptional public delivery of two judgements of the International Labour Organisation setting aside with immediate effect and substantial awards of material and moral damages the suspension of a judge of the Boards of Appeal of the EPO. These judgements point at such severe violations of the principle of separation of power at the EPO and total lack of control by the Administrative Council, that the German Constitutional Court in those four pending cases which specifically relate to the functioning of Boards of Appeal cannot but require a fundamental reshaping of the European Patent Organisation´s structure in regard of the judiciary.
    When turning next to the UPC complaint, the Constitutional Court will have no other choice than to acknowledege that the present regulations in the UPCA are even less protective of the independence of the judges.

  4. I suspect the Concerned Observer has his(her?) finger on it when suggesting that the UK HMG’s current mindset is that it doesn’t want to be fingered as the one who turned off the UPC Life Support Machine.

    But apart from that, there are still many months to go before the end of the BREXIT Article 50 period in March 2019. I know that today it still seems inconceivable, but in politics it routinely happens that the inconceivable eventually happens. Don’t lose sight entirely, of the possibility of an agreed withdrawal of the UK’s Art 50 Notice at some stage before the end of March 2019.

    And if that happens, well then, with pharma the biggest user group for pan-European patent litigation, London is in the UPC driving seat.

  5. Dear Max Drei,

    If the Art 50 notice is withdrawn at some stage, UK might stay in the EU, but it should then not expect any special treatment as it has enjoyed while being in the EU.

    You can not say you leave the club, make all the preparations for the leave, and then say I want to come back, in the club, but still recover my previous privileges.

    Any government proposing something like that is committing political suicide. The quest for power alone, would withhold a government from acting like this.

    But we all thought that Trump would never be elected….

  6. Enough, the UK is a democracy and from time to time elects a new Government. Suppose early in 2018, the voters in the UK elect a Government with a mandate to withdraw the Art 50 Notice. How vindictive will the 27 be then, I wonder. Would it not be simpler for all 28 to simply agree to continue “As you were”, uninterrupted by the Referendum hiatus?

    The “leaving the Club” is not an exact analogy. Individual club members don’t hold General Elections. Of course, one or other of the 27 might veto a move to take the Art 50 Notice off the table. But playing the Veto card is not something a Club Member does lightly. If you were a partner in a law firm, how often would you do that to your partners?

  7. I’m pretty sure the UK will be asked to pay the bill for the EMA and EBA as now (continuation of rental of empty offices), and still looses both agencies.
    Furthermore, the others might ask the UK to pay for the EU side of negotiation costs, including all commissioned impact papers, the UK government chose to ignore….

    And likely it’ll loose some of the previous special agreements, like not having to join the EURO. And this may be the harshest requirement by the others when discussing brexexit.

    We’ll find out, one way or the other.

    BTW, can we put the bill partly with Mr R. Murdoch, because his The Sun was among the most read and worst lying proponents of the Brexit..?
    But then, what is currently happening within the EPO is a very good example of why the people want to pull back out of supranational organisations and federations.

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