The United Kingdom wants to stay in the Unitary Patent system post-Brexit. This has been confirmed in the UK’s Brexit White Paper, which was published today.

According to article 151 of the paper, ‘The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.’

A spokesman for UK IPO said: ‘This will need to reflect the change in the UK’s status as we cease to be an EU Member State, which will require negotiations with our European partners. We look forward to beginning those negotiations with our European partners so as to ensure the continuing success of this new system.’

He also said: ‘The UPC and Unitary Patent project are an important means of simplifying the protection of innovative products throughout Europe’ and ‘UK participation in the UPC and Unitary Patent will extend the benefits of these systems to businesses operating in the UK.

The UK announcement doesn’t come as a surprise. Since the Brexit vote of 2016, the government has always declared it wants the UK to be a member of the Unitary Patent system. UK ratification of the Unified Patent Court Agreement and related protocols was completed in April 2018.

The announcement was immediately welcomed by the Chartered Institute of Patent Attorneys in the UK.

Still, the Brexit of 29 March 2019 is seen as a potential stumbling block for the UP system, as participation is only open to EU member states and by the time the system launches, the UK might not be an EU member any more. The system was expected to enter into force this year, which would mean the UK, as an EU member, could participate and some provisions would have to be adapted post-Brexit.

But this scenario has become unlikely due to the constitutional complaint against ratification of the UPCA in Germany (one of the obligatory signatories before the UP system can enter into force). The final decision in this case could come somewhere this year – if the Federal Constitutional Court doesn’t admit the case, but otherwise it could take up to a couple of years. In that case, the UK is not an EU member anymore and its membership of the Unitary Patent system would require complicated renegotiations and likely lead to the postponement of the implementation of the system, possibly for several years.

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8 comments

  1. Can anyone explain to me how it is that the current UPC Agreement could be salvaged if it is not amended (to reflect the changed status of the UK) before 30 March 2019?

    My understanding is that it is not possible to amend the UPC Agreement before it comes into force. Thus, if adaptations are required in the light of Brexit, it would appear necessary for those adaptations to be made BEFORE Brexit.

    1. I am disappointed that no one has attempted to answer my query. This is because I have heard repeated assertions (from important or influential quarters) that failure to amend the UPC Agreement before Brexit would not necessarily prove fatal for the UPC … even if it might complicate things a little.

      It is just such a shame that none of those from the “optimistic” camp is prepared to explain the legal mechanisms by which the UPC Agreement can arise like a phoenix from the flames of Brexit. Whilst waving farewell to the current UPC Agreement might prove hard for some to stomach, it would at least provide certainty. As we all know, (legal) uncertainty is bad for businesses. I therefore struggle to understand why anyone would want to prolong that uncertainty by making unsupported assertions that, even if it is not amended pre-Brexit, there could still be life in the current UPC Agreement. It would be far better to get the relevant, legal arguments out in the open, so that businesses can make a reasoned assessment of their chances of success.

    2. Apparently for the governments consider Dec 2020 to be the significant date fir amending the UPCA not March 2019 provided the withdraw agreement is in place and goes more or less according to plan.

      Draft article 6 of the withdraw agreement says

      “Article 6
      References to the Union and to Member States
      1. For the purposes of this Agreement, all references to Member States and competent authorities
      of Member States in provisions of Union law made applicable by this Agreement shall be read as
      including the United Kingdom and its competent authorities, except as regards:
      (a) the nomination, appointment or election of members of the institutions, bodies, offices
      and agencies of the Union, as well as the participation in the decision-making and the
      attendance in the meetings of the institutions;
      (b) the participation in the decision-making and governance of the bodies, offices and
      agencies of the Union;
      (c) the attendance in the meetings of the committees referred to in Article 3(2) of
      Regulation (EU) No 182/2011 of the European Parliament and of the Council4
      , of
      Commission expert groups or of other similar entities, or in the meetings of expert
      groups or similar entities of bodies, offices and agencies of the Union, unless otherwise
      provided in this Agreement.”

      Which doesn’t expressly refer to international agreements like the UPCA (only to Union law) but I can see why they might consider the UK remains an EU member states for purposes of UPCA during (2019-2020) transition period.

      1. Art 2 a (v) of the draft withdraw agreement may cover it expressly

        “Article 2
        Definitions
        For the purposes of this Agreement, the following definitions shall apply:
        (a) “Union law” means:
        (i) the Treaty on European Union (“TEU”),
        ….
        (v) the agreements between Member States entered into in their capacity as Member
        States of the Union;”

        Looking at the recitals of the UPCA, the UPCA would seem to come under that definition but I’m happy to be contradicted if anyone understands that it means something else.

        1. Hmmmn. I am inclined to concede that this explanation is at least not wildly implausible… though, if relied upon, I have no doubt that it would face many legal challenges and may ultimately be found wanting.

          However, at this stage, I see two main issues with the proposed “escape route”.

          Firstly, the Withdrawal Agreement is only ever intended to cover a time-limited period. Thus, relying upon that Agreement for the purposes of satisfying relevant demands of PERMANENT provisions of the UPC Agreement (including Article 2(b)) is somewhat questionable. This is not least because bringing the UPC Agreement into force under such circumstances would make it more a matter of luck than judgement that another escape route (that is robust from the perspective of EU law) would be found to cope with the end of the transitional period.

          Secondly, agreement upon the provisions of Article 4 of the draft Withdrawal Agreement (“Methods and principles relating to the effect, the implementation and the application of this Agreement”) has not yet been reached, even at negotiator’s level. Indeed, the 19 June 2018 joint statement makes it clear that outstanding areas include “consistent application and interpretation of the Agreement by both the Union and the UK and DISPUTE SETTLEMENT”.

          How (or whether) these outstanding issues are resolved may well prove crucial to the chances of success in relying upon the Withdrawal Agreement as an escape route for the current UPC Agreement. Given the recent influence demonstrated by hard-line Brexiteers on shaping the UK’s negotiating stance, as well as their ideological stance on the sovereignty of the UK (and its courts), I would not place too many bets on things working out well for the UPC.

  2. As mentioned in the blog, in § 151 of the Brexit paper it is stated that: “The UK …… intends to explore staying in the Court and unitary patent system after the UK leaves the EU. ……The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.”

    I understand something different under a firm commitment to the UPC!

    In her foreword, the PM made clear that UK will be “ending free movement and the jurisdiction of the European Court of Justice”.

    How can this position be compatible with wanting to stay in an international agreement which in its Art 20 enshrines supremacy of Union Law, and foresees in its Art 21 that the UPC will “cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be binding on the Court.”

    Under these premises, the firm legal basis of under which UPCA can continue can only be without UK’s participation after Brexit. Anything else might end up like the defunct EPLA when taking into account Opinion C 1/09.

    Even if the UPCA should enter into force before Brexit, merely leaving the EU at Brexit will bring about a big legal mess full of uncertainties. How on Earth can it then be possible to tell clients, that they should not opt-out?

    At least the UK’s government has realised that it needs a firm base in matters of civil judicial cooperation, and would seek to join a kind of “improved” Lugano convention, cf. § 145-148. Brussels 1 will be dead as far as post-Brexit UK is concerned.

    I would therefore refrain strongly from any enthusiasm with respect of post-Brexit UK participation in the UPC. It is no more than a straw, and certainly not a life buoy!

    This is the more so, that UK actually wants to a large extent to keep the advantages of the single market, at least for goods, but not any of its corresponding commitments. The EU negotiator has not yet said anything about the new paper, but one thing has been made clear all the way long: cherry picking is not on.

    Techrigts: FINGERS OFF!!!

  3. Attentive, I believe the UK position is but the most recent of an infinite progression of pious aims, which suffer the fate of being waved away by any reasonably intelligent and well-informed dispassionate observer as yet another “Cake-ism”.

    It is the most recent example of drafting by Civil Service Sherpas, in text required to satisfy their Head-in-the-Clouds political masters, who are concerned to maintain their absurd posture in front of a geriatric and clueless electorate, for as long as it takes till a political escape route becomes apparent..

    Cake-ism is, of course, the negotiating stance based on the misapprehension that you can “Have your cake, and eat it too”. When it is the EU 27 on the other side of the table, you can’t. Dare I say it, a No Brainer.

  4. To my distinguished co-commenters above:

    Whether the date is March 2019 or December 2020, one problem will remain: enforcement. How on Earth a judgement of the UPC or any other court in a EU member state will be enforced in UK or, vice-versa, a judgement of the local or of the “Central” section of the UPCA in London, will be enforced outside UK?

    It is not for nothing that the UK government is talking about a kind of “improved” Lugano convention, as Brussels 1 will be dead as far as post-Brexit UK is concerned.

    Unless work is done on those two aspects, the UPCA itself, and ways of its enforcement when UK is involved, that some hope can be had about a post Brexit stay of the UK in the UPCA. And it remains an unanswered question: what will the CJEU think of all this?

    When one sees the battle looming for relocating the London Section of the “Central” Section of the UPC, the negotiations for amending the UPCA will be far from easy. The Italians have already made a claim in that direction, the Dutch are lurking in the background, and on top of this some German aficionados of the UPC want it to go to Munich. Probably in the secret hope to get the whole lot later…..

    It might well be that the UK government will accept, at least for a while, to follow the jurisprudence of the CJEU, if it can stay in some EU agencies, but will the remaining EU member states accept it? And the UPCA is not an EU agency.

    As Max Drei has made it clear, cake-ism is not on the menu.

    It should also not be forgotten, that what has not been dealt with in the first basket, will not be part of the negotiations of the second basket. This explains probably the rather prudent statements of the UK government in matters of UPCA.

    That Business Europe repeatedly states that the European Industry needs and wants the UPC, is one thing, the legal and political reality is another one.

    That the legal profession in the UK would like to stay in the UPCA goes without saying. This is however at best wishful thinking. Folks, the sooner you stop dreaming, the better you will feel.

    Techrights: FINGERS OFF!!!!

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