Like Corto Maltese charting forgotten seas, the UK now sails through uncertain waters in the shifting landscape of European patent litigation. Brexit did not bring about a complete rupture but rather a complex reconfiguration of balances and strategies. Caught between aspirations for strengthened judicial sovereignty and a European reality structured without it, the UK is striving to redefine its place. As the taciturn sailor once said, “it’s not the paths we choose that shape us — it’s also the ones we leave behind” (The Golden House of Samarkand), the UK searches for its course among the islands of an international law it largely helped to chart. Yet, in this new jurisdictional geography, it is wiser to read the maps than to rely on the winds.
A Legal Legacy on the Outside Looking In
Since January 1, 2021, the European patent landscape has undergone profound changes. For the UK, this transformation raises questions of balance and continuity: how can it maintain a role in a system it historically helped shape, yet from which it is now external?
British law—and more broadly, the common law tradition—significantly informed the very conception of the UPC. Direct illustrations include the front-loaded procedure, the emphasis on expedited written phases, the role of the reporting judge, and the logic of swift preliminary injunctions. These elements are codified in the UPC Agreement, particularly in Articles 43, 52, and 62.
The British Presence: Active, Yet Peripheral
UK firms remain highly present in the initial cases handled by the UPC. British-origin firms are involved in a significant proportion of cases due to their procedural expertise and cross-border litigation experience. Their influence remains visible despite lacking a formal institutional anchor. This presence is accompanied by deliberate strategic choices: several UK firms have opened or strengthened offices in UPC member states such as Ireland, France, and Germany (JUVE Patents – “UK firms secure considerable slice of the UPC cake”). The advantages are manifold: staying authorized to represent clients before the UPC, ensuring operational continuity from an EU member state, accessing local talent, and being close to key divisions. Ireland, in particular, stands out: English-speaking, a UPC member, and with a compatible legal tradition.
From Signatory to Spectator: The UK’s Withdrawal
Although the UK signed the UPC Agreement, it withdrew before the Agreement entered into force and is therefore no longer a participating Member State. As a result, no local division is located in the UK. It finds itself as an engaged observer, yet devoid of direct institutional channels. Could this externality eventually undermine the attractiveness of its own jurisdiction?
The High Court of England and Wales still enjoys a reputation for technical excellence, and its case law remains influential. However, its territorial competence is limited to roughly 67 million consumers, compared to the approximately 297 million citizens covered today by the 17 UPC member states. Moreover, in sectors where territorial scope is pivotal—such as standard-essential patents (SEPs), network technologies, or pharmaceuticals—the UPC offers leverage that British litigation cannot match. Centralized effects, costs, and timelines all favor the new court.
Reasserting Influence: Strategic and Institutional Options
Faced with this reality, the United Kingdom has several concrete levers at its disposal to strengthen its position within the European patent ecosystem.
It could increase the visibility of its case law by systematically publishing High Court decisions in English within European databases, showcasing its litigation model at international intellectual property conferences, and forging partnerships with European bar associations.
It could also facilitate access for European rights-holders to UK courts by concluding technical bilateral agreements with major UPC member states or directly with the European Patent Office. Even without formal treaties, procedural interoperability—similar to the EPO’s Patent Prosecution Highway agreements—could suffice, enabling the extension of accelerated examination concepts to cross-border injunctions via mutual recognition protocols.
On the institutional front, the UK might explore either a revival of the original UPC accession process or propose a parallel mechanism of marginal convergence—similar to the relationship between the European Court of Human Rights and EU courts. A “Co-operation Protocol” could, for instance, allow the UK Supreme Court to request advisory opinions from the UPC on compatibility issues. However, such a consultative function is not currently foreseen under the UPC Agreement. The proposal must therefore be understood as a forward-looking idea—an institutional metaphor rather than a legally actionable mechanism.
The High Court could also position itself as the default forum for mixed disputes involving both European and British parties. Through exclusive-jurisdiction clauses in co-ownership or licensing agreements, parties could entrust the UK judiciary with interpretive authority over contractual or substantive legal issues.
Albion’s Compass: Between Influence and Isolation
In other words, like Corto Maltese, the UK is now sailing between legal continents without a precise institutional compass. It still possesses its adversarial culture, procedural rigor, and a degree of strategic freedom. The question is whether it will chart a new course or drift further from the system it helped define.
Ultimately, the same conclusion applies: what is needed is a truly integrated European patent system within the EU legal framework. And to achieve this, the UK must be included—not merely symbolically, but strategically and constructively.
Despite Brexit, the UK remains deeply embedded in European legal history—from Magna Carta and Habeas Corpus to the foundational principles of modern procedural law. Even in Strasbourg, fundamental concepts like fair trial and proportionality reflect British influence. European law, in no small part, was built from the shores of Albion.
After all, to borrow Corto’s words: “It’s no disaster to get lost. One must only remember to return.” (The Golden House of Samarkand)
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Thanks for an interesting publication about the position of the UK and its judicial system in a landscape in which the UPC has appeared.
I have a different view on the matter.
The problems induced by Brexit stem undoubtedly from the fact that the UPCA, contrary to the EPC, does not have an exit clause.
I beg to disagree with you when you claim that the UK is not a signatory to the UPCA.
It was a signatory state of the UPCA and even ratified it. The ratification of the UPCA by the UK has been withdrawn by a “Note Verbale” from the UK government which has informed the Parliament and The House of Lords.
The ratification act of the UK was deposited with the General Secretariat of the Council of the European Union. It is however doubtful that the depository has the powers to decide whether the withdrawal of a ratification is effective or not.
A “Note Verbale” is a formal form of note and is so named by originally representing a formal record of information delivered orally. It is thus not clear at all whether a “Note Verbale” can be used to terminate the participation of a country in a treaty which provides no exit clause.
In the absence of an exit clause, the Vienna Convention on the Law of Treaties should apply, as the latter provides some mechanisms to deal with such a situation, cf. mainly Art 56 VCLT, but also Art 62 and 65 VCLT. It is worth noting that none of the conditions set out in Art 56 VCLT, relating to the exit or termination of a treaty without any exit clause have ever been fulfilled after Brexit.
The problem is that, in all post-Brexit actions linked to the UPCA and the opening of the UPC, the VCLT has been superbly ignored. One simply wonders why.
It is also not clear whether the withdrawal applied for the future (“ex nunc”) or retroactively ab initio (“ex tunc”). It is certainly not for the depository to take such an important decision.
It can thus be argued by the ratification of the UPCA, which does not contain any possibility of withdrawal, the UK has accepted that there is no withdrawal from it. It can further be argued that that the “Note Verbale” has no effect whatsoever and that the UK is still bound by the UPCA.
This changes the picture you have drafted quite drastically. I am therefore of the opinion that the Brexit is hanging over the UPC like a Damocles’ sword.
Even in case of clearly overruling political reasons, political decisions should nevertheless abide by the rule of law. The UK wanted to leave the EU at any rate and as quickly as possible, and all the staunch supporters of the UPC did not want to risk their baby to be put in question and its entry into force was heavily pushed by carefully ignoring the VCLT.
The ratification of the PPA and the PPA has been withdrawn with the same “Note Verbale” as the ratification of the UPCA. Prima facie, the problems mentioned apply mutatis mutandis to the PPA and the PPI.
The “Preparatory Committee” had announced a common declaration under Art 31 VCLT with the aim of replacing UK by IT in order for the PPA and PPI to enter into force.
Such a declaration has never been thought for and has neither been signed nor published. On the contrary, the depository declared on its volition that that the PPA and the PPI were in force.
The legal basis allowing the depository to decide on the entry in force of the UPC appears to be lacking. Simply receiving the ratifications cannot be equated with a right to decide whether some legal texts are in force or not.
The saga around the Brexit and the UPCA is far from over.
Thank you for your thoughtful and comprehensive comment — it raises important legal questions that deserve serious attention.
You are absolutely right to underline that the UK was initially a signatory of the UPCA and even ratified it. The focus of my statement was not to deny this historical fact, but to reflect the current legal position: the UK is no longer a participating member of the UPC system, nor listed among the Contracting Member States in the post-Brexit legal and institutional architecture of the Court.
Regarding the withdrawal via Note Verbale, your observations about the absence of an exit clause and the potential applicability of the Vienna Convention on the Law of Treaties (VCLT) are well taken. Yet, the practical reality is that all other Contracting States, and the Depository itself, have accepted the UK’s withdrawal as effective, both politically and functionally.
The lack of a formal interpretative declaration under Article 31 VCLT is, indeed, a lacuna — but one that was bridged de facto by a collective political and institutional practice. Whether this is formally perfect is a fair question, but international law often tolerates such pragmatic solutions, especially in mixed or hybrid systems like the UPC.
On the legal force of the Note Verbale, I agree that it is debatable whether such a withdrawal is ex tunc or ex nunc in the absence of an exit clause. However, the consensus interpretation — and the operation of the system — treat the UK as having effectively left. The consequences of contesting that status today would be politically explosive and legally destabilising.
I share your concern that legal certainty could have been better secured — but I also believe that insisting on the VCLT’s strict application here risks ignoring the sui generis nature of the UPC Agreement, which is not a multilateral treaty in the classic public international law sense, but a legally hybrid instrument of enhanced cooperation.
In any case, your comment is a very valuable contribution to the debate, and I thank you for bringing this important angle forward.