Brexit: the implications for the UPC and the Unitary Patent

The Unified Patent Court (UPC) and Unitary Patent are (in this context) regarded as EU instruments, and following the Brexit vote, there is a serious risk that the UPC and Unitary Patent regimes will not now come into effect. This is because it is a condition precedent for the UPC to start its business that the three largest EU member states ratify the UPC Agreement - namely the UK, Germany, and France. The UK has not done so, and now it is going to leave the EU, the Government may not be able to justify politically the ratification of an EU instrument.

There has also been a debate over whether non-EU countries can participate in the UPC, and so whether the UK could legally remain part of the UPC after Brexit if it wished to. A recent Opinion by leading Constitutional and EU law barristers indicates that the UK could do so, but only if it agreed to remain bound by EU law in matters within the jurisdiction of the UPC. This is likely to raise further significant political questions over the UK government’s interest in participating.

The decision to leave the EU notwithstanding, the UK will remain a member state of the EU for (likely) two years after the Article 50 declaration is made whilst the UK and the EU negotiate the exit agreement. During this time, the UPC would still need the UK’s ratification to open. Unless the UK agrees to ratify the UPC Agreement, or it can be amended or re-executed to remove the requirement for UK ratification, the UPC would not be able to open until the UK has ceased to be a member state, and by that time - likely two years or more down the line - the political will for the UPC may have cooled. This has happened for political reasons in many Eastern European countries in recent months, and this decline in interest will only continue if a major patenting country, the UK, is no longer going to take part.

If the UPC does not open, the Unitary Patent will not come into effect either.

Before the referendum, changes were approved and implemented into the Patents Act 1977 in preparation for the UPC. These will either be left to ossify as an irrelevance, or removed soon.