UK Decision To Ratify EU Patent Court Leaves Key Questions Hanging

The United Kingdom government is preparing to ratify the Unified Patent Court Agreement, it said on 28 November. The move took the patent community by surprise but failed to relieve uncertainty about what will happen when the UK finally Brexits the EU, according to patent attorneys in the UK.

As long as the UK is a member of the EU, it will “continue to play a full and active role,” Minister of State for Intellectual Property Baroness (Lucy) Neville-Rolfe said in a statement. “We will seek the best deal possible as we negotiate a new agreement with the European Union.”

However, Neville-Rolfe noted that the “decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.”

“Bolt from the Blue”

“This development came as a bolt from the blue,” Baker Botts (London and Moscow) IP attorney Neil Coulson told Intellectual Property Watch. It shows that while the UK remains in the EU, it will continue to play its role in the UPC and bring the new system into being, he said.

But “what happens to that role when the UK exits the EU (whenever that may be) is unclear,” Coulson said. There will either have to be an agreement for Britain to remain in the UPC, or an exit process from it, he said.

“No doubt this will be part of the wider Brexit negotiations, but these are questions which business and industry need answered sooner rather than later,” Coulson said.

“Pragmatic Approach”

The announcement “was a surprise to many,” Taylor Wessing (London) patent lawyer Christopher Thornham emailed. In the immediate aftermath of the Brexit vote, the UPC project had stalled, but the UK’s decision to ratify the agreement in its current form means the new system can start with the UK participating, he said.

Britain will then have some time with the UPC up and running in which to make arrangements and negotiate for continued UK participation after Brexit, said Thornham.

“It’s a pragmatic approach” by the government to get the UPC started and deal with other issues later, he said. “It was becoming increasingly apparent that trying to sort out now (before the start of the UPC) all issues for the UPC after the UK’s exit from the EU, posed the risk of protracted negotiations that might jeopardise the UPC project altogether.”

 

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