What will happen to the Unified Patent Court when the UK leaves the EU?

The decision of the UK to leave the EU has inevitably created uncertainty. Initially there were concerns that the UK might not proceed with the UPCA at all but the UK government has since stated its intention to ratify the UPC Agreement. It has also taken out a lease on the premises that will house the London Local division and branch of the Central Division and is taking steps to complete the legal ratification process. Assuming it does so, and that Germany also ratifies, the UPC and UP will come into effect long before the UK leaves the EU. Following the UK’s departure, which will be in 2019 at the earliest and may be subject to lengthy transitional arrangements, it is almost certain that the UPC/UP will continue to operate.

The further concern is whether the UK will continue to participate in the UPCA following the UK’s departure from the EU. The stated intention of the UK government is to remove the UK from the jurisdiction of the Court of Justice of the EU, which could be seen as incompatible with the UK’s continued participation post-Brexit. On the other hand, the UK Government has also stated that it wishes to facilitate the freest trade possible with the EU. Furthermore, as mentioned above, most substantive patent law applied by the UPC will not be EU law. Whether the UK does remain in the UPC system therefore appears to be more of a political question than a legal one. Depending on the outcome of the negotiations between the UK government and the EU and other Member States, in particular regarding trade and competition, the UK may well continue to play a full part in the UPC, especially if the UPC – and the divisions located in London – is busy and successful and popular with industry.

The UP, unlike the UPC, is established by an EU Regulation and some kind of extension agreement will therefore be required if unitary effect is to continue to be extended to the UK. Alternatively, European patents could be validated separately in the UK but still litigated in the UPC, just as with non-unitary EPs validated in other participating Member States.

Whatever the final arrangements, Marks & Clerk will continue to serve all the IP needs of its clients from its European offices.

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