Unified Patent Court to open in London despite Brexit

The UK will ratify the Unified Patent Court Agreement, confounding speculation that the UK would pull out as a result of Brexit.

The government’s announcement this week means the London section of the Unified Patent Court (UPC) is likely to open next year as planned. The UPC will be headquartered in Paris, with sections in London and Munich and local divisions in other EU Member States.

Alan Johnson, partner, Bristows, welcomed the news but warned of “uncertainty as to the long term participation of the UK”.

“Some say that it is possible for the UK to remain in the UPC if certain actions are taken including notably an EU-UK agreement to give the Court of Justice of the European Union (CJEU) jurisdiction to take references from the UPC in its revised form as a court comprised of non-EU and EU states,” he said.

“Others say that nothing at all need be done save extend the unitary patent regulations to the UK. So there is a spectrum of views ranging from having to do virtually nothing to maintain membership, to it being impossible.

“And if the UK continued in the UPC without taking the right steps (whatever they may be), could the CJEU rule that the court was incompatible with EU law? Clearly, it could potentially. Even if that was thought an unlikely result the consequences could be very serious for patent owners. In that situation, what is industry to do about its existing rights? Can it safely leave them in the UPC system or should it opt them out? Is it safe to apply for unitary patents?

“What happens following ratification during the Brexit negotiations to ensure a legally solid basis for the UPC in the long term is just as important as the launch of the UPC in the first place.”

The UPC enables businesses to protect their patent rights across Europe through a single patent and a single patent court.

UK Minister of State for Intellectual Property, Baroness Neville Rolfe said: “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.”