The UPC and Brexit

The entry into force of the UPC system can hardly be discussed without mentioning Brexit and the issue of the UK leaving the European Union. Below follows a brief discussion of the UPC and the effect of Brexit on the UPC.

First of all, it should be noted that Brexit will not affect the grant of traditional European patents with effect for the UK. European patents are granted by the EPO, which is not a part of the EU system and which already grants patents with effect for non-EU member states such as Switzerland, Norway, Iceland, Turkey, and Albania.

In relation to the unitary patent and the UPC Agreement, there has been much debate in light of Brexit regarding whether the UK could participate in this without being an EU Member State, as described in our previous newsletters. Previously, the UK stated that they wanted to participate, however, in early 2020 they announced that they were not going to do this after all.

This has solved several problems in relation to community law. However, it is also clear that the UPC most likely will have to be amended, because according to Article 7(2), a section of the central division shall have its seat in London. Annex II stipulates that this section shall hear cases regarding "Human necessities" as well as cases regarding "Chemistry, metallurgy". In practice, this means a large part of the important cases on medicinal products. Accordingly, an agreement must be reached politically on where to place this section of the UPC instead.

For more details about the UK's participation, see our newsletters on this subject:

"The UK does not want to join the Unified Patent Court anyway"

"Brexit: Can the UK remain a member of the Unified Patent Court in future?"

Read about the lawfulness of UPC in our newsletter:

"Max Planck Institute raises questions about the lawfulness of the Unified Patent Court"

See also Sture Rygaard and Peter Nørgaard's article in the magazine Danish Biotech (Dansk Biotek) on the effect of Brexit on the UPC:

"Brexit and the challenges of UK accession to the UPC"

UPC - Unified Patent Court