By Deborah Kirk
The UK will ratify the Unified Patent Court Agreement despite the Brexit vote, it was announced yesterday. It is unclear whether this marks the start of a long participation of the UK in this 40-years-in-the-making unifying change in patent law in Europe or whether Brexit will result in the UK exiting the new system almost as soon as it has signed up to it.
The unitary patent (UP), or “patent with unitary effect” is in the senior stages of adoption after four decades of preparation and negotiation. When introduced, UPs will protect an invention in all participating Member States of the EU in a uniform manner. UPs will be subject to the jurisdiction of a new Unitary Patent Court (UPC) whose judgments will be binding on participating states in so far as they apply to UPs under the Unitary Patent Court Agreement (UPCA).
There was much speculation as to whether, despite its key role in the establishment of the new system, the UK would ratify the UPCA given the Brexit vote in June this year. Yesterday, Teresa May announced that UK will ratify the agreement. The UPCA requires 13 member states to ratify before it can come into being: currently 11 have ratified and Germany, and now the UK, have confirmed their intention to do so. This means the court could be active within a year.
While this system appears to offer a more unified, streamlined and cost-effective approach to uniform patent registration and enforcement across participating EU states, it does require participating states to accept the supremacy of the Court of Justice of the European Union, and be bound by its decisions, with regard to Unitary Patents. In the light of the seeming inconsistency of this position with Teresa May’s promise that the UK will no longer be bound by the authority of EU law, and a promise of an Article 50 notice by the end of March 2017, the question now is whether the UK will withdraw, as a result of Brexit, from the UPCA so shortly after embracing it.
Regardless of the UK’s position in respect of the UP and the UPC, following Brexit, UK organisations and individuals will still have the option of securing national patents and UK patents will still likely be obtainable via the European Patent Office (EPO) given the European Patent Convention is likely to continue to apply to the UK.