A couple of weeks ago we wrote about an opinion from Richard Gordon QC and Tom Pascoe of Brick Court Chambers about the UK’s potential continued participation in the unitary patent system.

The authors’ view was that it would be legally possible for the UK to continue subject to certain safeguards being in place. They did however note that the unitary patent and UPC raised “significant political as well as legal issues”.

So, the legal flesh seemed willing, would the political will be strong or weak?

The only comment before last weekend from the government seemed to be an exchange in the House of Commons back on 5 September in which David Davis was asked by Mrs Cheryl Gillan (the Conservative MP for Chesham and Amersham) whether the UK would ratify the UPC agreement before the end of this year.

The reply was as follows:

For as long as we are a member of the European Union, which by the sounds of it will be at least two years, we will meet all our obligations and we will take our responsibilities extremely seriously, including the one that my right hon. Friend has outlined.

David Davis,  5 September 2016

This statement, if viewed carefully from a long distance away through rose tinted glasses, could possibly have been taken, with a fair following wind, that the Government wasn’t completely dismissing the UPC out of hand. (Alternatively of course, it could be taken as simply a holding response and David Davis had never heard of the UPC…)

However, last weekend as part of Theresa May’s Great British Break Off speech at the Conservative Party conference there was a stronger indication of which way the wind might be blowing.

As noted above, the upshot of the UPC opinion was that from a legal point of view it seemed possible that the UK could continue to participate in the unitary patent and UPC post-Brexit as along as a number of conditions were met, including the supremacy of EU law. The opinion suggested (paragraph 80) that an international agreement between the UK and the CJEU would be required in order to permit the CJEU to hear infringement actions in respect of the UK divisions of the UPC.

Theresa May also made reference to the CJEU in her speech as follows (the PM refers to the court by its previous name, the ECJ):

But let me be clear. We are not leaving the European Union only to give up control of immigration again. And we are not leaving only to return to the jurisdiction of the European Court of Justice.

Theresa May, 2 October 2016

To IPcopy’s mind, given the UPC Opinion indicated an agreement with the CJEU would be needed, this statement from the PM does not look good for the UK’s participation in the UPC.

What happens next then? If the Government is set on walking away entirely from the CJEU then presumably this means that we also have to walk away from the Unified Patent Court in its present incarnation or even the revised versions that were being considered recently.

The unitary patent scheme will also remain on hold until we exit the EU (sometime around the end of March 2019 according to the PM’s speech) unless possibly we back out of the system now and allow the remaining Member States to go it alone.

IPcopy would be interested to hear from anyone in the know who may have heard an official line relating to the unitary patent scheme following last weekend’s conference speech. Will there still be a push from the UK legal sector for continued involvement in the UPC? Or will there now be proposals for a new system that exists separately from the EU.

In the meantime, there may be some office space going free in Aldgate.

Mark Richardson 4 October 2016