Throughout the Brexit negotiations, we've been keeping an eye on the future of the Unified Patent Court. Joel Clendinning takes a look at the latest update.   

As Brexit negotiations trundle on, and David Davis and Michel Barnier debate issues like passporting rights for UK financial institutions, other pressing issues – like the future of the Unified Patent Court (“UPC”) – have fallen down the agenda.

Since our previous blog discussing the concerns of business leaders for the future of the UPC, the Law Society has sent a note entitled ‘Intellectual Property Law and Brexit’ to UK government ministers.

Some of the main organisations representing UK IP professionals – including the IP Bar Association, the Chartered Institute of Patent Attorneys, and the Chartered Institute of Trade Mark Attorneys – supported the note, describing the UPC as ‘one of the most significant developments in IP dispute resolution of recent years’. 

They recommend that the government should provide legal certainty as soon as possible, and carry out the following actions:

 •confirm that they want the UK to stay in the UPC and follow the terms of the UPC agreement

•implement the UPC as soon as possible

•proactively work with UPC member states and EU institutions to ensure there are no obstacles to UK participation post-Brexit

Once implemented, the UPC will hear disputes relating to European patents and European patents with unitary effect which will be valid across Europe. 

Although the ratification process is almost complete in the UK, the role of the European Court of Justice (“ECJ”) in the UPC system remains unclear. Under the new system the UPC will be able to make references to the ECJ on unsettled legal questions and regard ECJ decisions on relevant EU law as binding. 

Dr Ingve Stjerna, the attorney leading the German challenge, commented that the UK’s ratification proposal is ‘hardly reconcilable’ with its commitment to leave the jurisdiction of the ECJ. Regardless of UK ratification, the uncertainty of German constitutional challenge still looms – and, although unlikely, could still derail the entire system.

Industry leaders are growing increasingly frustrated with the lack of progress and transparency from the government. The importance of the UPC system can’t be understated, and the sooner companies have clarity on the government’s intentions, the sooner they can align their IP strategies accordingly.