Can the UK continue with the UPC post-Brexit? IPcopy suggests a tentative way forward.
After months of soundbites we finally heard the “plan” for Brexit this week when the Prime Minister gave a speech at Lancaster House that detailed a 12 point plan for leaving the EU (Full transcript here).
Objective 2 of this action plan related to the control of our own laws and leaving the jurisdiction of the CJEU (see extract from the transcript in footnote below1). This in turn lead several commentators to speculate that this would block the UK’s participation in the unitary patent scheme post-Brexit since, under the UPCA, questions relating to the interpretation of EU law can be referred from the UPC to the CJEU.
How, in light of this link between the CJEU/UPC and the PM’s statement, could the UK continue participation in the UPC?
The simplest answer to the above question is that post-Brexit the UK will have to leave the UPC and unitary patent. However, this is seemingly at odds with statements made recently by Jo Johnson (see our article from earlier this week) where it was suggested that the UK has a great interest in being part of the UPC and that our continued participation will be part of the Brexit negotiations.
So, IPcopy wondered if there was a way of reconciling this apparent conflict such that the UK could stay part of the UPC.
The UPC and the CJEU
There’s a good summary/overview of the nature of the Unitary Patent Regulation and the Unified Patent Court Agreement in the UPC opinion produced by Richard Gordon QC and Tom Pascoe of Brick Court Chambers. The upshot however is that the UPC is not an EU court but an international court and the UPCA is not an EU agreement but an international agreement.
The UPC broadly has jurisdiction over infringement and revocation of patents that have been granted under the European Patent Convention, an international agreement made up of a mixture of EU member states and non-EU countries. The Court comprises a Court of First Instance and a Court of Appeal. Questions on the application of EU law (as opposed to decisions on infringement/revocation) may be referred to the CJEU to ensure Union law is consistently applied (see Article 21 of the UPCA).
The UPC has no impact, however, on national law and, in particular, it is noted that patents granted under the UK Patents Act 1977 do not fall within the competence of the UPC. Instead, cases relating to such “UK Patents Act” patents need to be brought in the IPEC, the Court of Session or the High Court.
So, maybe what the PM said was true, from a certain point of view2
IPcopy notes that Jo Johnson repeatedly stated that the UPC was an international court and not an EU institution. This, taken in conjunction with the PM’s statements, makes us wonder if UK Gov is going to argue that what they’ve (Theresa May and Jo Johnson) been saying is consistent because even if we stay within the UPC (and therefore maintain some kind of link to the CJEU), our own national patent law (UK Patents Act 1977) is outside the jurisdiction of the CJEU.
Perhaps in this way the Government is looking to pull us out of the EU but still maintain its presence in the UPC?
Mark Richardson 19 January 2017
1 Extract from the 12 point plan
2. Control of our own laws
That means taking control of our own affairs, as those who voted in their millions to leave the European Union demanded we must.
So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.
Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.
Because we will not have truly left the European Union if we are not in control of our own laws.
2 Star Wars
Yes, that was a very tenuous and somewhat strained reference to the Star Wars universe but the memory of Rogue One is still with me so forgive me!
I thought about taking the reference further until I realised that both sides in the Brexit negotiations (UK and EU) probably each regard the other as the Empire.
Having said that I’m sure they’ve both worked out who to cast in the role of Bo Jo Binks…..