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Brexit and the UPC

After the UK’s ratification of the Unified Patent Court (UPC) Agreement on World IP Day 2018, April 2018, the Government’s latest Brexit White paper (published last week) reiterates the UK’s intention to at least explore being a part of the Unitary Patent system & Unified Patent Court post-Brexit.

The most pertinent sections of the White Paper relating to Intellectual Property are these:

150. There is a long history of European cooperation on patents, which can be costly to enforce in multiple jurisdictions. Most recently, this includes the agreement on a Unified Patent Court to provide businesses with a streamlined process for enforcing patents through a single court, rather than through multiple courts.

151. The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.

152. Arrangements on future cooperation on IP would provide important protections for right holders, giving them a confident and secure basis from which to operate in and between the UK and the EU.”

Whilst, given the current political rumblings, it still seems that we don’t know what form Brexit will take, this does indicate that the current Government will seek to continue to be part of the Unitary Patent system (“… to explore staying in the Court and Unitary Patent System…”).

This specific paper is rather quiet regarding the future of trade mark, design and copyright rights, with just a general mention of all Intellectual Property Rights. It does mention an intention to establish a new UK Geographical Indications (GIs) scheme post-Brexit (sections 38 and 39).

The UK is still set to leave the EU on 29th March 2019. However, as Unitary Patents are going to be administered by the European Patent Office, and not the EU, it is theoretically possible the UK will still be able to participate in the Unitary Patent system. As well as Brexit-related uncertainty, the Unitary Patent system is also delayed because there is a pending German constitutional challenge against its ratification of the Agreement. German (along with French and British) ratification is required for the Unitary Patent system to go ahead.

As well as having an established EU (Dublin) presence, TLIP is poised to advise clients about patent protection strategy once the UPC system comes into place. Alex Turnbull, Paul Lynch, Anna Bartholomew, Simon Fortt and Lisa Brown are all European Patent Attorneys with the appropriate current qualifications to be awarded a European Patent Litigation Certificate.  This certificate is the qualification that certain attorneys can obtain in order to have the same rights to conduct litigation at the Unified Patent Court (UPC) as a legal practitioner.

Please get in touch to Alex Turnbull on mail@tlip.co.uk for further information.