As the process to leaving the European Union starts for the United Kingdom, attorneys expect Britain to be part of the EU’s new Unified Patent Court, while the separation is finalized. However, questions linger regarding whether the United Kingdom can participate in the court after leaving the EU. The British Prime Minister’s signaling of its intention to leave the EU officially begins two years of negotiations over the terms of the departure, which will include the U.K.’s role in the patent court. In November the British government said, it still plans to ratify the agreement establishing the long-planned Unified Patent Court, the court should adjudicate about patent disputes across the EU in the future. Attorneys expect the British Parliament will approve ratification in the coming weeks.
The United Kingdom will still be a member of the EU and will participate in the court, when the agreement is ratified and the court gets up and running as planned later this year. The U.K. might be able to remain a part of the court once it is no longer part of the EU but attorneys say both political and legal considerations make that far from certain. Under these premises the issues that will remain unresolved include whether British politicians will accept being part of a court made up of EU members that makes decisions outside the U.K., whether the other countries will want a non-EU country to participate in the court, and whether it will be even legally permissible for the U.K. to be involved.
Right now, Patent owners can get either a national patent that the offers protection in only one country, or a European patent, which is essentially a bundle of national patents that must be enforced with individual litigation in each country. After ratification, the EU unitary patent will offer protections in more than 25 EU countries and infringement disputes regarding a EU unitary patent can be adjudicated at the Unified Patent Court, in one case and the system was expected to take effect last year, but the Brexit election outcome slowed the process. The agreement establishing the Unified Patent Court requires ratification by 13 EU members, including the U.K. although it had been unclear if the UK would ratify the agreement after its Brexit vote. But the government of the U.K. said last year that it would do so and would “play a full and active role” for as long as it is part of the EU. John Pegram of Fish & Richardson PC’s New York office said” There have been no indications that Parliament won’t ratify the agreement. Once the U.K. does ratify the next step will be for Germany the final required country to ratify the agreement. After the approval would be begin the process for the UPC to begin operations in December.
Complicating matters are issues such as the Brexit proponents argument that the U.K. should not be subject to rulings by European courts like Luxemburg-based Court of Justices of the European Union, which will have a role in reviewing some aspects of the UPC’s. In other words, the U.K.’s continued participation after it departs the EU will be subject to negotiation over the next two years. Especially what the U.K.’s role would be in a European court with judges from countries all over the continent making decision’s on patent matters in the U.K. An agreement to give the British the possibility the participation in the UPC could be reached between the U.K. and the EU. However, the current agreement would require a modification, as it currently refers to all the participants as EU members states.
Questions remain on whether UPC participation could be used as a bargaining chip by the EU during Brexit negotiations, and whether British politicians who promised to end the CJEU’s, jurisdiction over the U.K. will be on board with a patent system where decisions can still be reviewed by that court, although only on narrow issues.
However even if a deal could be made for Britain to be part of the UPC post-Brexit, the CJEU could still potentially pose a legal hurdle to the U.K.’s participation. The court could rule that only EU members can be participate in the court, as it held in an earlier case over the formation of the court.
The Unified Patent Court will hear disputes over traditional European patents as well as the new unitary patent, but there is also a question of whether unitary patents would be enforceable in the U.K. post-Brexit. Still, despite all the potential complications for patents that could arise once the U.K. leaves the EU, attorneys said it appears that the Brexit vote has not derailed the new system and that it should be able to roll out in the coming months.