Brexit: will the UK be able to participate in the Unified Patent Court (the "UPC") in the future?
One of the many questions that have cropped up after the Brexit vote on 23 June 2016 is whether the UK will be able to participate in the UPC without at the same time being a member of the EU. A recent opinion prepared by Richard Gordon QC and Tom Pascoe, Brick Court Chambers, on behalf of a number of IP organisations tries to shed some light on the question.
Based on a review of the CJEU's statement, Gordon and Pascoe conclude that in principle nothing prevents the UK from participating in the UPCA as a non-Member State if the UPCA includes sufficient safeguards to protect EU constitutional principles. It means in particular that the following is to be ensured:
- The UK must accept that the UPC applies EU law and that EU law may therefore become applicable in the UK to the extent that it is relevant to the UPC. At the same time, this means that the UK must accept the supremacy of EU law over domestic law. It also means that the UK must accept that the country may be bound by future EU legislation.
- The UK must accept that the country may be held responsible for any breach of EU law committed by the UPC.
- The UK must accept that the UPC can make preliminary references to the CJEU. This also implies that the UK will have to accept the CJEU's interpretation of EU law.
- Against this background, the authors conclude that a possible way forward would be that, following its exist from the EU, the UK can sign up to the UPCA by a separate agreement. Such an agreement can be adopted as part of the Brexit negotiations.
As an alternative, the UK could ratify the UPCA while still a member of the EU. In that way, the UPCA can come into force, as its coming into force requires ratification by the UK. The Administrative Committee set up under the UPCA will then be able to implement the necessary amendments to the UPCA to ensure compliance with EU law. The Committee is specifically empowered to implement amendments to the UPCA to comply with EU law.
The authors of the opinion do, however, point out that the question is unclear. The CJEU's statement from 2011 does not directly consider the question about participation by non-Member States which means that it cannot be ruled out that it will be overruled.
Reading the opinion, it should firstly be noted that the European Commission has previously interpreted the CJEU's statement from 2011 to mean that the UPC could only be established if participation was reserved for Member States and that this is the reason why the UPCA is only open to Member States. It means that it is not certain that the proposed route for UK participation is legally feasible.
Secondly, it should be noted that it might be difficult to implement the proposed model politically. According to the authors, the requirements that the UK will have to satisfy to become participants in the UPCA imply that the country must have a de facto status as a Member State for the purpose of patents.
It is crucial that both patent holders and potential infringing parties can be certain that the UPC and its decisions are legal. A model for UK participation in the UPCA should therefore in any event be prepared so as not to come into force if there is any doubt as to whether this is actually the situation.
Read the opinion on Brexit and the Unified Patent Court