Business as usual for UPC, says chair

05 July 2016

Following the result of last month's UK referendum to leave the EU, the Unified Patent Court's (UPC) Preparatory Committee has said that preparation for the regime will continue as planned.

Acknowledging that the shock 51.9 - 48.1 vote in favour of quitting the union gave "rise to questions concerning the future" of the UPC and unitary patent protection, the committee issued a communication on the next steps following Brexit.

Stating that the work of the committee and the Select Committee is "far advanced and expected to be completed before the end of the year", chairman Alexander Ramsay explained that it is "too early to assess what the impact of this vote on the UPC and the UP eventually could be".

However, he added progress of the programme, which will see a single patent covering 25 member states, largely depends on political decisions to be taken in the course of the next months.

"It has to be recalled that for the time being the UK remains a member state of the European Union and a signatory state of the UPC Agreement," he said.

The chair furthered that the committee endorsed 'more clarity' regarding different possible scenarios to the technical implementation which "should continue to progress as envisaged, in accordance with the mandate of the committee".

This is "in line with the clear wish of the user community" to bring the UPC and the UP into operation as soon as possible, the chair concluded.

The committee's next meeting has been scheduled for early October.

The UPC Agreement was signed by 27 EU member states, except for Spain and Italy, in February 2013.

It aims to grant pan-European unitary patents that will bestow uniform protection in all contracting member states and will be enforced under the exclusive jurisdiction of the UPC.

The regime includes three Central Division Courts - Germany, France and the UK - but due to Britain's departure it is thought either Italy or The Netherlands will take over.

Posting on Bristows' blog post-referendum, Philip Westmacott said that as matters stand, the UK cannot be in the UPC if it is not in the EU.

"But despite the vote to leave, we are still in the EU today, and will remain in the EU for at least two years after we give notice of intention to leave, which it now seems may well not be until October. That two year period can be extended by agreement of all 28 states," he explained.

He stated that it is 'theoretically possible' that the UK could, while still an EU member, ratify the UPC, enabling it to open in 2017.

"It is even possible that the London branch of the Central Division could open its doors, but that all seems politically highly unlikely. If the UK takes no further part the other countries could negotiate an amended agreement, which will require agreement on the location of the work which had been destined for the London branch," Westmacott commented.

Gowling WLG's Nick Cunningham explained that if the history in this area is anything to go by, such an agreement "could take some time and the political will to implement the system in the rest of Europe may begin to wane".

He added, "Consequently, the UK's leave vote at best will delay implementation of the UPC system for the rest of Europe and at worst could result in the project foundering at this late stage. Whether the UK will address this by ratifying the Agreement and, if necessary, seeking a way to remain involved in the UPC and UP system in the circumstances of an eventual Brexit, remains to be seen."

This article first appeared on Intellectual Property Magazine website, 5 July 2016.


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