Ratifying the Unified Patent Court Agreement

the thin red line

The UK government announced this week that it has, at last, ratified the 2013 Agreement on a Unified Patent Court. It had announced its intention to do so in November 2016, nearly 18 months and two IP Ministers ago.

The UK IP professions are generally in favour of such ratification. But they would like to see some concrete evidence of the government’s intention to negotiate for the UK’s continuing participation in the UPC and UPCA after Brexit. Some time ago, they obtained a QC’s opinion that provided a road-map to how the UK could participate after Brexit, but it would require the agreement of other EU countries and EU institutions. So far as IP Draughts can tell, industry and other EU countries are in favour of continued UK participation.

A potential difficulty with this idea is that the UPC/UPCA is subject to the supervisory jurisdiction of the Court of Justice of the European Union (CJEU), and the UK government has declared that CJEU jurisdiction is one of its “red lines” in the negotiation of the UK’s future trading relationship with the EU. This was, no doubt, what led then-MP Douglas Carswell to put down an early-day motion in the previous Parliament, calling for it not to be ratified. Fortunately (in IP Draughts’ view) no other MP was prepared to second this motion, which consequently did not proceed.

Back in November 2016, the government’s press release was at pains to distance the UPC from the European Union. It included the following “note to editors”:

The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.

At the time, IP Draughts thought this was as much a note to the Brexiteer wing of the Tory Party as it was to editors.

But the official government line on continued participation has always been that this will be a matter for the Brexit negotiations. The UK government has not been willing to show its hand and say in terms that it wants the UK to participate in the UPC/UPCA post-Brexit. A fortiori, it has not been willing to say whether the limited CJEU jurisdiction required for participation is so marginal, and in such a non-political arena, that it might be allowed to slip over the thin red line that has been set for other areas of trade policy.

Observers have been left to read the runes of statements coming from government, to see if they can detect at least a direction of travel, even if a policy statement is currently thought to be politically impossible. If you stare long and hard enough at the comments from ministers and civil servants, do they start to levitate?

In this context, it is interesting to look at the latest press release about ratification, and see what it says about the future. It includes the following statements:

The unique nature of the proposed court means that the UK’s future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU.

Ratification of the UPCA will keep the UK at the forefront of influencing the international system.

Should we read these statements as a hint that the UK government thinks we should be in the UPCA for the long haul, and not just until the end of the transition period implementation period?




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Filed under Intellectual Property, Legal policy

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