For the last year or more, talking to the UK government about Brexit and IP has been a one-way conversation. The UK IP professions have worked hard to agree common positions on what they would like the UK IP system to look like, after Brexit. An important part of the debate has been how far the UK will continue to participate in, or be aligned with, European IP systems. Papers have been written on this subject and supplied to government officials, and meetings have been held with those officials.
But – and IP Draughts doesn’t blame the officials for this, it reflects the political situation they have been in – the meetings have largely consisted of the professions explaining their positions, and government officials nodding wisely and refraining from making any comment whatsoever about how closely the UK wishes to be aligned with the EU. To do so has risked making political statements. For example, many models of alignment would involve the UK accepting the jurisdiction of the CJEU, and avoiding such jurisdiction has been one of Theresa May’s red lines.
Now, at last, with the publication of its White Paper, we are seeing some tantalising glimpses of the UK’s negotiating position on IP and other subjects, as the government starts its dance of the seven veils.
An area that is of particular interest to IP Draughts is the unitary patent, the unified patent court (UPC) and the UPC Agreement. The UK has ratified the UPC Agreement, and has taken out a lease on some rooms in an office block in central London, which will be the UK court. The UK government’s position has been that as long as the UK remains in the EU, it will continue to participate fully in the UPC. But the UK government has previously refused to state whether it wishes to continue as a participant in the system after Brexit or how this might be achieved. “That is a matter for future negotations” was about as much as anyone in government was prepared to say.
Last Autumn, IP Draughts coordinated a joint note from the IP professions to government on Brexit and IP. It was eventually sent to the IP minister and others in government in late December 2017. The note was brief and high-level, targetted at people outside the UK Intellectual Property Office. More detailed papers on IP topics had already been submitted to the UK IPO.
On the UPC, the note included the following recommendations:
…the Government should provide legal certainty regarding the UPC, and now do the following:
(a) confirm that it is the UK’s intention to stay in the UPC, and that the UK is prepared to abide by the terms of the UPC Agreement, following Brexit;
(b) work towards the coming into effect of the UPC as soon as reasonably practicable in collaboration with other UPC Member States; and
(c) work with other UPC Member States and EU institutions to ensure there are no legal or practical obstacles to UK participation in the UPC and the Unitary Patent, following Brexit, on equal terms with other Member States.
The objectives should be (i) continuation of the Court in London; (ii) continued involvement of UK national judges; and (iii) continued rights of participation of legal professionals qualified and based in the UK in all parts of the Court’s procedures on the same terms.
The part of the White Paper dealing with the UPC seems to be consistent with the above position, and this is to be welcomed. Paragraph 151 of the White Paper includes the following statements (colour added):
The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.
The bit in red is perhaps more tentative than one might wish to see (“intends to explore”), but at least it shows a good direction of travel.
The bit in blue we can ignore – it is directed to Eurosceptics who may be concerned about the residual jurisdiction of the CJEU, and seeks to divert attention from this point by making the legitimate point that for most practical purposes it will be the UPC court that decides matters.
The bit in green adds little to the bit in red, other than to say that the UK will be talking to other EU states about how the UPC Agreement can lawfully continue – in practice, an amendment to the text will be required if the UK is to continue to participate.
So, there is not much meat on how this miracle will be achieved, but at least the government is finally saying that it wants to achieve it. IP Draughts hopes that the UK IPO will now have a mandate to start, and actively pursue, negotiations with other member states and with the European Commission on these points.
According to IPKat, the a spokesman for the UK IPO has clarified what the IPO will be doing in light of the White Paper:
The UK intends to stay in the Unified Patent Court and unitary patent system after we leave the EU. The UPC and unitary patent project are an important means of simplifying the protection of innovative products throughout Europe. This Agreement sets the bar for the level of constructive cooperation that the UK seeks with European partners in the future.
UK participation in the UPC and Unitary Patent will extend the benefits of these systems to businesses operating in the UK.
The UK will work with our European Partners to ensure the Unitary Patent and Unified Patent Court continue on a firm legal basis. This will need to reflect the change in the UK’s status as we cease to be an EU Member State, which will require negotiations with our European Partners. We look forward to beginning those negotiations with our European Partners so as to ensure the continuing success of this new system.
So, things are moving at last. Let’s hope the IPO is able to negotiate a solution that enables the UK to participate fully after Brexit, and retain the life sciences part of the central division of the court in London.