On 26 April, the UK ratified the EU’s Unified Patent Court (UPC) agreement. Although much of intellectual property law and practice is already harmonised amongst EU member states, a UPC would set up a common patent court for the hearing of intellectual property cases, and the direct applicability of its rulings, across all EU member states – something which is currently not the case, as patent cases (even for European Patent Office granted patents) are presently litigated on a country by country basis. The UPC would have the competence to hear cases regarding European patents with unitary effect, but also other European patents registered within states which have ratified the UPC agreement.
The UK is now the 16th European state to ratify the UPC agreement and, with France having ratified in 2014, only Germany’s ratification (alongside the UK and France, as one of the three countries with the most European patents in effect) is necessary for the agreement to come into force and for the UPC to come into operation. Presently, Germany’s constitutional court, the Bundesverfassungsgericht, has requested the German Federal President hold off on ratification until a domestic constitutional challenge to the agreement has been dealt with. The case is listed to be heard later this year.
Whilst operations of the UPC cannot commence until the agreement is ratified by Germany, preparatory arrangements have begun, including recruitment of UPC judges, the drafting of procedure rules, and the testing of the UPC’s operational IT systems.
The Brexit referendum’s result once represented a threat to Britain’s participation in the UPC project; now, the UK government’s ratification of the agreement demonstrates a determination to remain engaged with the EU on the regulation of intellectual property rights. Despite London losing the European Medicines Agency, the life sciences division of the UPC will be based in London, with the UK Intellectual Property Office having leased space for the division in Aldgate Tower in the City.
The UPC agreement is drafted and has been ratified with respect to Contracting Member States of the European Union, and therefore the UPC agreement must be addressed and incorporated into the terms of the UK’s exit deal when the UK leaves the EU on 29 March 2019. However, the UPC agreement is governed by an international treaty outside the EU, and is not strictly speaking an EU instrument. So it is arguable that the Europe-wide benefits accompanying harmonisation and an acknowledgement of the intensive amounts of resources and willpower put into developing the system will keep the UPC agreement off the negotiating table. Regardless of negotiations, the national system of UK patents would be unaffected (as the UK would remain a member of the European Patent Office).
Nevertheless, the post-Article 50 notice ratification of the UPC agreement lays bare the UK government’s intentions to participate in some manner in the UPC framework. Given that the signatory states to the UPC agreement will each need to permit the UK to stay within the European Patent Court, there remains the possibility that yet another front of negotiation in respect of the terms of the UK’s departure from the EU has opened up. Watch this space.