UK – ratifying the UPC – could we, should we?

September 2016

Two interesting documents on Brexit and the UPC have been published; the UK Chartered Institute of Patent Attorneys (CIPA) view on the UPC in light of Brexit, which is supported by the second document, an Opinion from Legal Counsel.

On the face of it, these documents paint a positive picture – the UK “could” continue to participate in the Unitary Patent by entering into a new international agreement with the participating EU Member States. The UK could even host the Life Sciences/Chemistry section of the UPC, but changes would have to be made to the UPC Agreement. However, the complexity of the additional agreements and amendments that would need to put in place should not be underestimated. 

Whilst the view that the UK “could” join the Unified Patent Court and can remain part of the UP system after the UK leaves the European Union may be legally correct in the opinion of Counsel, the changes required to make that happen, may concern the other EU Member State participants to the UP & UPC agreements.   

However, ratifying now, and exiting later, is likely to add even further to the complexity of these issues, but hasn’t been ruled out.  As reported by WIPR, Margot Fröhlinger, principal director of patent law and multilateral affairs at the EPO, the EPO “wants the UK’s involvement” but … "if the UK does not ratify or waits to see how Brexit plays out, the UPC members will have to “find a way to go ahead without the UK””.

HGF continues to monitor the situation regarding BREXIT and the UPC closely; we believe the UP and UPC systems would be stronger and more beneficial for businesses with UK involvement, but suspect the political obstacles and issues of sovereignty that need to be tackled, as well as agreements that may need to be put in place, could take as many years to agree as the UP & UPC agreements themselves have taken.

 

This update was prepared by Martyn Fish, Partner.

If you would like further advice on this or any other matter please contact Martyn or your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.