Following the recently-issued government paper on the upcoming negotiations with the EU, stating that the UK would not accept any form of oversight from the CJEU or other EU bodies, there have been various rumours about the UK’s future participation in the UPC system, even though it was designed to minimise the involvement of the CJEU.
The UK ratified the UPC agreement in April 2018, despite preparations for Brexit. At the time, Theresa May’s government noted that the new international court system would be separate from EU institutions and recognised the importance of Europe-wide patent enforcement to UK business. Had Germany’s constitutional court not delayed matters, the new courts would have opened for business early last year.
However, the UK’s non-participation in the UPC was officially confirmed to CIPA last week (27 Feb 2020). Tim Moss – the IPO’s CEO – has been telephoning the various UK IP organisations to inform them that the UK will not be seeking membership of the UPC.
Whether the UPC will go ahead at all now is an open question. The question of German ratification is still lost somewhere in the German constitutional court with no sign that a judgment will be handed down any time soon.
Some leading European businesses have suggested that, if UK pulled out of the UPC before the German court made its decision, the UPC was essentially dead for at least a generation. However, the UK’s hard-line position may well promote a reaction among European countries that will energise them to press on once German constitutional issues are resolved.
If the UPC system does proceed, European Patent Attorneys from all EPC member states, including the UK, will be able to participate.
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