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Unified Patent Court under threat as UK decides against participation

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In a move that underlines much of the UK government’s strategy with regard to legal and standards conformation post-Brexit, Downing Street has recently confirmed that it would not become a member of the EU’s forthcoming Unified Patent Court (UPC) and its associated unitary patent.

The European Union is setting up the Unified Patent Court to act as a common, standardised court across all contracting Member States. The UPC would become part of each Member States judicial system, and it would have exclusive competence in respect of European patents and European patents with unitary effect.

Until the current government came to power, the UK Intellectual Property Office (IPO) had previously stated that as the court will not be an EU institution, then the UK’s participation would not be affected by Brexit. However, the 2013 intergovernmental agreement which created the court provides for appeals involving aspects of European law to be referred to the European Court of Justice for resolution. Downing Street has now decided that is incompatible with the government's determination to escape European jurisdiction, with a spokesperson saying that “Participating in a court that applies EU law and bound by the CJEU is clearly inconsistent with our objective of becoming an independent self-governing nation.”

The government's announcement means that the UK will no longer be entitled to host a division of the court. In 2015, the IPO signed a lease for office space in Aldgate in London, in preparation for the UPC’s opening date originally scheduled for 2016. The UK’s decision not to participate also puts at risk the whole future of the UPC, with the UK being one of three states that was required to ratify the court agreement for it to come in to force.

Intellectual Property Lawyers

Solicitors and Barristers specialising in intellectual property (IP) law have been unanimous in their concerns for the IP claims sector. In commenting on the announcement, a spokesperson for one leading IP specialist firm, Marks & Clerk, said:

“Previously there was a degree of optimism about the likelihood of participation in the Unified Patent Court, even if we decided to leave the EU, but this announcement has made it clear that will not happen. This is certainly a blow for industry as it was felt the UPC would be an excellent forum to resolve patent disputes with a single set of legal proceedings in one court, with one judgment and one appeal process…It will be very interesting to see what happens in the European Union and whether the unitary patent and UPC project will continue to go ahead without the UK - but even if it does it will almost certainly now be less appealing for businesses.”

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