UK government confirms it will not seek involvement in the UPC
It was announced last week that the UK will not seek to be part of the UPC.
The Unified Patent Court (UPC), if implemented, will provide a common international court for litigating European patents in participating EU Member States in relation to infringement and validity of both Unitary Patents and European patents, thereby providing a single procedure in place of possible parallel litigation. Companion Unitary Patents (UPs), if implemented, will make it possible to obtain patent protection in up to 26 EU Member States by submitting a single request to the EPO, providing a simpler and more cost-effective procedure for applicants.
On Thursday, February 27th, a UK government spokesperson stated: “I can confirm that the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”
In light of the statement by the government, it is important to note that all Forresters’ attorneys, who are dual qualified as both UK & European Patent Attorneys will maintain rights of audience before the UPC as the treaties are presently written.
It is written into the treaties that there will be a seat of the central division in London (A.7 (2) AUPC). Our view is that if the treaties are opened to change this, which is very likely if the UPC is to continue, various other governments may want to change further things in the treaties and the consequent haggling is likely to delay the UPC by years. Additionally, even if the only treaty change is to remove the central division in London, the ratification process will have to effectively start again in most countries, which also takes years in many cases.
There is also the question as to whether other states will want to participate at all in a UPC and Unified Patent system which doesn’t include the UK. This is especially so in light of the UK patent litigation expertise which was due to form part of the UPC, in particular, through the involvement of UK judges both as adjudicators and as advisors to the UPC committees.
Furthermore, the German constitutional court is still yet to rule on whether or not the UPC is compatible with the German constitution. While a decision is expected this year, many are sceptical about this deadline as a decision was also forecast to be issued in 2018 and 2019.
It therefore seems that the UPC and UP have been subject to a further substantial delay of a number of years. For further information in relation to the UPC and UP, please contact Jack Gunning or your usual Forresters contact.