Newspapers reported last week that Christine Lagarde, the head of the IMF, regarded a vote to leave the EU as having “pretty bad to very, very bad consequences” for the UK. This view was echoed by four of the five panelists at the CIPA/IP Centrum Brexit Symposium on Thursday 12 May. The symposium, hosted by Gwilym Roberts, included a contribution from Kevin Mooney who has been heavily involved in preparations for the (hopefully) upcoming unitary patent system.

In this post IPcopy will take a look at the implications for the unitary patent system in the event of a vote to leave the EU.

Before we tackle the UPC specific issues it is worth noting the possible timetable in the event of a Brexit vote. A notification of the UK’s intention to leave the EU under Article 50 of the Treaty on European Union would trigger a two year period to negotiate our exit (However, like an exam report from the EPO, extensions may be available on request). The two year period, starting this summer, would also take in the French Presidential elections (April-May 2017) and the German Federal election (August-October 2017).

The unitary patent system appears, the possibility of Brexit notwithstanding, to be entering the final straight. Kevin Mooney noted that the current timetable has the Preparatory Committee finishing their work in July 2016, Provisional Application beginning in November 2017 before a target start date of 2 May 2017 (that’s the first time IPcopy has heard a specific date mentioned).

Additionally, Kevin Mooney indicated that the sunrise provision is expected to run from November  2016 to February 2017 and judges will be appointed in January next year. The plan at the moment is for Germany and the UK to hold off lodging their instruments of ratification until February 2017.

If the UK votes to remain in the EU then the above timetable is seen as realistic. However, if the UK votes to leave then Kevin said the issue is a stark one. The UK would need to exit the unitary patent (UP) system and the whole project would be at risk of being abandoned.

If a vote to leave is triggered then it is noted that the UK would remain a member state of the UPCA until the negotiations were complete (in 2+ years). During this time, unless all the remaining member states could get together and amend the UPCA (to replace the UK as one of the three Member States under Article 89(1)UPCA and to move the location of the London part of the central division), the unitary patent project would be stalled.

Given that some member states seem to be taking a wait and see approach (Slovakia, Cyprus, Hungary, Ireland and Portugal) it was seen as unlikely that the UPC Agreement could get amended during the Brexit negotiation period in order to get the UP project moving again.

There is a possibility that the UK could press on and ratify the agreement during the negotiation period in order to allow the unitary patent system to come into effect but such a friendly pro-EU position was regarded as unlikely. Under the CJEU opinion 1/09, member states of the unitary patent system must be members of the EU so ultimately the UK would leave the project.

On the question of whether the whole UP project would fail, it was noted that the UK has had extensive influence, e.g. in the drafting committee, the advisory group, the IT systems and the fees sub group. A unitary patent without the UK would look far less attractive and UK judges and UK lawyers would not be able to participate. All this, in conjunction with the delay in the process, was seen as providing a real risk that the unitary patent project would fall on its face.

Even if the unitary patent system went ahead without the UK then there would be consequences. The UK part of the central division would need to move (Milan appears to be the likely location) and UK only firms of lawyers would not be able to be representatives at the UPC. German influence over European litigation would probably increase as a result and UK litigation would probably tail off.

An interesting question was raised in the Q&A session about the possible impact of a vote to leave on the European Patent Litigation Certificate. Under Article 48 UPCA there is no requirement for European Patent Attorneys to be part of the EU if they want to be entered on to the list of UPC representatives. As things stand, UK-EPAs would still be able, in the event of a vote to Brexit, to represent clients before the UPC.

Rule 11 of the draft proposal for rules of the EPLC applies for EPAs having a “degree in law …in a Member State of the European Union or who have passed an equivalent state exam in law of a Member State of the EU” and rule 12(b) relates to experience before a national court of a Contracting Member State. So it would seem that these rules would not allow UK-EPAs to join the list of UPC representatives in the event that that UK votes to leave.

However, Rule 12(a)(iv)-(viii) lists a number of UK courses and certificates that would allow a UK-EPA to join the list of representatives. As things stand, the provisions of rule 12(a) would still allow UK-EPAs to join the list of representatives regardless of the outcome of the vote on 23 June. The question to consider though is will these courses stay within the rules if the UK votes to leave? The EPLC rules were negotiated outside the main unitary patent negotiations and so presumably it is possible they could be amended again.

On 23 June the UK will vote whether to leave the EU. Although it will be unknown to virtually everyone voting, this vote will also have a great impact on the unitary patent system. Will we vote to stay and see the project start next year? Or, will we vote to leave and experience the pretty bad (the unitary patent system continues in a limited form without us) or the very very bad (the entire project being abandoned)?

Mark Richardson 17 May 2016

Further information

Requirements to register as a patent attorney in Ireland

EU Referendum Poll of Polls (whatukthinks.org)

CIPA Press release – Leaving the EU is likely to have a negative impact on IP in the UK

[Update: this post has been updated to clarify the discussion about the EPLC in the event of a vote to leave]