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Past, Present, and the dubious future of the Unitary Patent Court within the UK post Brexit

Written by Petar Aleksiev on 03 September 2018

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The arduous matter of enforcing a patent within the EU, and one current suggestion for improvement.

Backstory and a brief history of the Unitary Patent and the court supervising it:

Plans to establish and harmonize a cheaper and more effective way for inventors to patent their work within the whole of the EU has been debated and mulled over for years. This is due to the fact that in order for a patent to be recognized within a different jurisdiction than the one it was registered in, the applicant must apply to the European Patent Office in each individual country. This is a long and costly process, with the European Commission concluding that it would take up to €32,000 in translations (as required in some countries) and other costs to obtain a Europe-wide patent, compared to $1,850 in the US.
However, the initial proposals for establishing a solidified Unitary Patent and Unitary Patent Court(UPC) were scrapped by the European Court of Justice in the early turn of this decade. Plans for a remodeled Unitary Patent Court were soon drawn up in the face of the -UPC Agreement- in 2012. The proposed agreement was introduced and almost all EU member states are now behind the plan, including the UK. The only three which are not in agreement are Spain, Croatia and Poland.

Present- In order for the new UPC system to take effect, 13 EU countries, which must include Germany, France and the UK (seeing as how the 3 have the most patents registered in 2012) must pass national legislation in order to ratify the agreement. France completed ratification back in 14/03/2014. German ratification has been less straight forward and is yet to take place, with an ongoing legal challenge before the country’s Constitutional Court. As for the UK, the Brexit referendum of June 2016 has put the country in a very dubious position. At present, the UK government announced the ratification of the agreement on the 26th of April 2018 (World Intellectual Property Day). In spite of this, the actual agreement requires the country to be a member of the EU in order to participate. Adding further, the UK’s stance on bringing an end to CJEU jurisdiction post-Brexit is also an issue. This only deepens the continuing uncertainty surrounding the UK’s involvement in the matter, with both academics and practitioners expressing cautious optimism at the most.  

 

Future- The envisioned prospect of the agreement is hamstrung by the two issues mentioned above: German ratification and UK involvement after Brexit. They represent a huge risk to the entire project falling to pieces. As for the UK specifically, it would be down to negotiations as to the degree of involvement. According to the UK government’s latest statement, even if the plan goes through, actual reform is not expected to come into effect until the end of the expected EU exit implementation period in December 2020. Oddly enough, many German professionals involved in the UPC project are quoted as: “willing to go a long way to accommodate UK participation post-Brexit”.
In respect to the UK’s interest it is worth mentioning that 2017 saw a decline in UK patent filings, compared to the previous statistics. The IPO’s analysis suggest that an increasing number of companies prefer the US patent system to the UK, as it offer broader and  more secure protection. Involvement in the UPC system could be considered a step in the right direction in order to bring back and retain business in the UK.

 

As with everything surrounding Brexit, the legal community is holding its breath in anticipation and is eagerly/nervously awaiting to see the outcome of the current negotiations. Barring a no-deal Brexit, it is reasonable to expect the UK to continue its involvement in the UPC project and everything it represents.

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