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UK Government indicates UK will not be part of the UPC

Richard Mair The President of our professional body, CIPA , was informed yesterday (February 27) by the UK Intellectual Property Office CEO Tim Moss that the Government will no longer seek to participate in the Unitary Patent or Unified Patent Court system.

Richard Mair said: “This was not entirely unexpected, given the Government’s well-known views on the jurisdiction of the CJEU.

“British companies and SMEs will still be able to use the UPC if and when it comes into operation and, more importantly, the Rights of Audience of British-based European Patent Attorneys are unaffected by the Government’s decision. British companies and SMEs will still have the benefit of British representation by CIPA Fellows when litigating in the UPC.”

This story is likely to develop as the UK’s negotiations with the EU about the future relationship post-Brexit kick off next week. The UK officially left the EU on 31 January 2020, but is currently in a “transition period” until the end of 2020.

The implementation of the Unitary Patent System, which is planned to run in parallel to the current European Patent System, is currently on hold due to a pending German constitutional challenge. This is expected to be resolved in the first half of 2020. The goal of the Unitary Patent System is to have Unitary Patents granted by the European Patent Office, covering European Union states. A Unified Patent Court (UPC) will provide one court system to enforce and revoke these patents.

The UK was seen as a key member of the Unitary Patent System, hosting one of the themed Courts, or Central Divisions in London. This Court was to focus on chemistry and life sciences cases, including pharmaceuticals. If the UK is unable to become part of the Unitary Patent System, it remains to be seen if the Court will be opened there, or be re-located somewhere else.

This news comes despite previous indications from the UK Government that the UK would still be participating in the Unitary Patent System. In April 2018 the UK ratified the Unified Patent Court Agreement (UPCA), leaving Germany the only state who’s ratification is required for the system to begin running. However, this was all under previous Prime Minister Theresa May, and it seems this new stance is as a result of Boris Johnson’s indication that the UK will have a more distant relationship with Europe than his predecessor desired.

The Chartered Institute of Patent Attorneys (CIPA) released a statement back in November 2019 stating it is the Counsel’s opinion and CIPA’s view that the UK can join the Unified Patent Court and can remain part of the UPC system after the UK leaves the European Union. However, this is looking less likely now.

We will follow this story as it develops.

As we have previously noted, there will be no impact made by Brexit on the UK’s membership of the European Patent Organisation, which grants European Patents. Traditional European patents are and will still be being granted in the UK, whatever form the post-transition period relationship between the UK and the EU may take. European Patent Attorneys with the appropriate current qualifications will able to act in front of the Unified Patent Court (UPC) as a legal practitioner, if and when the Courts open. Alex Turnbull, Paul Lynch, Simon Fortt and Lisa Brown are all TLIP European Patent Attorneys with this required qualification.

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