IPcopy is finding it difficult to reconcile the UK Government’s various announcements regarding the CJEU with continued participation in the unitary patent scheme.

As discussed in an earlier post we suggested that the Government was going to argue that continued participation in the unitary patent scheme was OK, despite the presence of the CJEU within the unified patent court structure, because domestic patent law would be unaffected by the limited influence the CJEU would have over UPC decisions.

Last week it became clear from the explanatory notes  accompanying the European Union (Notification of Withdrawal) Bill (the “Article 50 bill”) that the Government was intending on pulling out of the European Atomic Energy Community (Euratom) as well as the EU.

For those unaware of the Euratom Treaty, IPcopy notes that it covers all civil nuclear activities that occur within the EU. There are currently 28 member states (the EU member states) plus one associated state (Switzerland). The Euratom organisation is based around the same institutional structure as the European Union including, you’ve guessed it, the CJEU.

The Referendum last year obviously made no mention of the European Atomic Energy Community and, to IPcopy’s mind, trying to argue that leaving the Euratom Treaty is also the “will of the people” is a small step, actually a giant leap, too far. Indeed, the news was greeted with some fairly strong words from people in the science community: Decision to leave Euratom ‘bonkers’, say experts. (See also Brian Cox’s tweet here.)

On The Andrew Marr Show on 29 January, David Gauke MP was asked by Marr about the decision to leave the Euratom Treaty (see iPlayer – available for 28 days from 29 January 2017 – the relevant section is from 41 minutes and 15 seconds). The reply that was given as justification for leaving Euratom was that “It does involve the European Court of Justice”.

IPcopy is therefore at something of a loss. According to Jo Johnson we are aiming to make the UPC and unitary patent scheme part of the Brexit negotiations and yet we are also seemingly going to leave a treaty that is separate from the Treaty on European Union because it has a connection to the CJEU. If the Government has that much of an issue with the CJEU how on earth can they continue in the UPC even if domestic law is unaffected?

Unless of course the Government doesn’t actually have a coherent plan and position….

On the post-Brexit swing-ometer of folly, IPcopy is currently swinging back to the UK position “Will help set up the UPC for negotiation Brownie points and will then exit Stage Left once we leave the EU”

Mark Richardson 31 January 2017