Effects of UK leaving the EU on the Unitary Patent and the UPC

Effects of UK leaving the EU on the Unitary Patent and the UPC
The result of the EU referendum held on 23 June was that the UK decided to leave the EU (European Union). As we have written previously the process of leaving the EU is long and can even take up to a couple of years.

The UK will have to negotiate with the EU and the remaining member states regarding several issues, and until the UK is finally ready to leave, nothing is expected to change.

It is for instance expected that the UK will stay within the European Patent Convention, since the EPO is not an EU institution, and thus be available for national validations for years to come. British European Patent Attorneys holding a certificate to litigate before the UPC will most likely still be allowed to do so.
In general terms no IP rights, including trademarks and designs in the UK will be lost, even though some might have to go through transitional actions when the UK finally leaves the EU.

What will happen to the Unitary patent package, including the UPC, is more difficult to predict. It is likely that the process will be delayed, and that the entry into force cannot take place in the beginning of 2017. Some voices have been heard that the UK might still be inclined to ratify the agreement during the negotiation period, as they are still a part of the EU until that period ends, meaning that the UPC can be up and running while the UK is still in the EU. If that happens, the UPC might very well be on its way during 2017. The UPC is also an international agreement, leaving some room for (Art 24(2)(2) UPCA) the UK to stay within the UPC, and have jurisdiction over traditional European patents, if they ratify before the end of the negotiation period ends and if proper amendments to the UPCA are made.

As one of the locations of the court is set to be in London, the UPC agreement will either have to be amended to relocate the court, or the seat will still be in London even though this court would have no jurisdiction over patents in UK and neither would UK nationals be able to sit as judges in the Court. None of these options is very attractive, and it is possible that keeping the Court in London will violate EU law. The UPCA will thus have to be amended, and a new location would likely be Milan in Italy or The Hague in the Netherlands.

One major concern is that the value of the Unitary patent will be diminished if the UK is not one of the countries in which the unitary patent can be obtained, and subsequently litigated in a unified manner. The UPC will then lose some of its attractiveness, since UK nationally validated patents will have to be nationally litigated and enforced. On the other hand, patent holders might be less inclined to opt out of the UPC since the UK designation would not be able to be attacked in the UPC.

It is also foreseen that the language regime will remain unchanged, i.e. the three languages English, French and German will still be used as stipulated by the Unitary patent regulation and the UPC.

Once the gun smoke has settled in the UK, we will know if they intend to ratify or not, and the time schedule for the UPC will be settled.

Sofia Willquist, European Patent Attorney

27 June 2016