Are we any closer to ratification?
Yes. On 8th February, the Privy Council approved the draft Unified Patent Court (Immunities and Privileges) Order 2017 (“Order”) following Scotland’s ratification of their equivalent statutory instrument in December. The Order confers legal status and all privileges and immunities on the court, and judges which allow it to function. The Order’s approval enables the UK to ratify the Protocol on Privileges and Immunities of the Unified Patent Court (“PPI”) and UPC Agreement (“UPCA”).
The Foreign and Commonwealth Office (“FCO”) must now effect the ratification of the PPI and UPCA, but before this can happen the Intellectual Property Office (“IPO”) must request that it does so. Once the IPO provide the green light, current Foreign Secretary, Boris Johnson MP, will sign a formal letter stating that the UK agrees to be bound by the PPI and UPCA, and notify the European Commission accordingly.
The last official statement from the government came from the previous IP Minister, Jo Johnson MP, which stated:
“Our position is that while the UK remains a member of the EU, we will and we should complete all necessary legislation so that we are in a position to ratify the UPCA”.
Observant followers will note that this statement falls short of confirming that ratification will go ahead, and it’s this lack of certainty that’s frustrating IP practitioners – if one thing’s clear it’s the government’s continued coyness. As well as business leaders, the respective Presidents of the Law Society and IP Federation have written to the current UK minister for intellectual property, Sam Gyimah MP, reiterating the importance of ratification, and asking for clarity on the legal basis on which the UK is able to stay in the UPC after Brexit (see our blog on this here).
German Constitutional Challenge
While this issue remains, concerns over how long the challenge might take have lessened - the court has confirmed it will be heard at some stage this year. Although this remains the most significant obstacle to the new Unified Patent system, reports suggest the legal arguments carry little weight and will be dismissed.
Role of the European Court of Justice (“ECJ”)
In her recent Mansion House speech, Theresa May outlined her vision for the UK’s relationship with the EU post-Brexit. While the UPC system was not specifically discussed, one of the key points Mrs May made was the fact that existing EU law, and ECJ decisions would continue to affect us as our courts will continue to look at past ECJ judgements. However, the government’s red line stance in respect of future decisions of the ECJ was clear - ECJ jurisdiction must end.
How can the government’s stance be aligned with the UPC system?
The EU wants the UK in the system; Mrs May’s government may use this position to leverage a solution more palatable to Brexit hard liners, who will claim betrayal as soon as the ECJ’s continued influence is so much as whispered during negotiations. While the government realise the need to placate hard liners, they also realise the importance of the UPC system, and the UK’s commitment to hosting a central court in London. Therefore, we need a careful balancing act as negotiations progress.
It’s important to note that the role of the ECJ will be limited to decisions on unsettled legal questions, and is by no means a backdoor for EU law into the UK. This dilemma will undoubtedly be a major headache for Mrs May, as the Brexit battle lines are drawn and IP practitioners and owners observe with apprehension.