EU Patent Court Launch Uncertain But Will Happen, Says Preparatory Committee Chief

LONDON — Britain’s vote to leave the European Union is just another “speed bump” along the path to a European unified patent and patent court, the head of the committee tasked with preparing the way for the new system said during a lively session at the 13 October London IP Summit. Others aren’t so sure, since Brexit has raised many complex questions, not least of which is whether there is the political will in the UK or EU to move ahead.

The Preparatory Committee of the Unified Patent Court (UPC) has weathered several other obstacles, including challenges by two member states in the European Court of Justice (ECJ) and language issues, said committee Chairman Alexander Ramsay. The complications of Brexit will be just another one, he said.

The UPC needs to be ratified by 13 EU members, including the UK and Germany, which haven’t done so yet, and so far 11 have signed, he said. At a preparatory committee meeting this week, many other EU members said they’re close to finalising their ratification procedures, he noted.

Before the 23 June Brexit vote, the preparatory committee believed it could launch UPC operations in spring 2017 after final agreement on the court system this fall, said Ramsay. That depended upon UK and German ratification, but the referendum vote has prompted uncertainty and it’s unclear how long the process will now take, he said.

Once there are sufficient ratifications, the project will enter a pilot phase in which the UPC will be set up as a legal creation, UPC bodies created and judges hired, Ramsay said. He predicted that the project will need around six months of this “provisional application” before the court can start issuing decisions.

A European Patent Office select committee tasked with implementing the unitary patent regulations is expected to meet for the final time on 25 October, said EPO international affairs lawyer Stefan Luginbuehl. The office has already largely completed its work to ready its information technology system for UPC patents filings and fees, he said.

Brexit will have no consequences for UK membership in the EPO, since the patent office is independent from the EU, said Luginbuehl. The EPO will continue to grant European patents for UK applicants, and European patents will continue to be effective in Britain, he said.

The UPC can’t begin until the UK ratifies the agreement, and there have been legal opinions stating that UK participation in the unified patent system would be legally possible even after Brexit, said Luginbuehl. One opinion, commissioned by IP lawyers, the UK IP Federation and other stakeholders, said that this is a political rather than a legal issue, but that some legislative changes would be necessary. Ramsay agreed, saying that if the UK Brexits, the UPC agreement will need some minor, technical amendments that could be handled in an administrative committee.

Option A is for the UK to ratify the UPC agreement, said Ramsay. But as preparatory committee chairman, he said, he wants to avoid a long delay in implementing the system, and if the UK government doesn’t make a quick decision, the other member states will have to come up with an option B – renegotiating the UPC agreement so it can enter into force without the UK. Reopening the accord, however, “could kill the entire project,” said moderator Ben Grau, a German patent attorney with Murgitroyd.

Most stakeholders would probably agree that finding a way for the UK to be in the UPC would be the best solution, said Taylor Wessing patent lawyer Chris Thornham. He believes it’s better to sort the issue out now rather than trying to untangle UK and EU patent rights later. Although the legal opinion stated that a Brexited UK can be part of the UPC, it would still have to cooperate with the European Court of Justice and apply EU law, something no British politician will champion, he said.

If the UK declines to ratify the UPC agreement or to give an answer about ratification for the foreseeable future, the other member states won’t want to wait two years (the time given to Britain to exit after the so-called “Article 50” notice of intent to leave the EU is invoked) to renegotiate the deal, Ramsay said. He said he has a time frame for how long they might wait but didn’t want to share it.

 

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