Is the new Unified Patent Court at risk because of Brexit?

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Back in April, the UK ratified the UPC Agreement – an agreement enabling a single European patent court to hand down judgments on patent disputes which will bind all contracting states. Other notable signatories (though not all yet ratified) include Germany, France, the Netherlands and Belgium.

It’s hoped the UPC will start its work in 2019 and the UK, often seen as an IP innovator, is expected to be a key player – a central division of the court, for example, is located in the City.

Brexit, though, has once again thrown a spanner in the works – there are now concerns that a no-deal could trigger the end of the UPC before it’s even begun. Despite assurances from the UK government that the political divorce will not hinder the UK-UPC relationship, many fear the opposite. Notably, the UPC’s doors are currently open for EU member states only.

Earlier last week, the House of Lords’ EU Justice Sub-Committee heard evidence as part of its inquiry into IP rights and the UPC. As noted by the inquiry, “Brexit poses profound questions for the application of [IP] law to the UK” and “casts doubt on the UK’s continued participation” in the UPC.

Evidence was heard from Kevin Mooney, the Chairman of the Committee tasked with drafting the Rules and Procedure for the UPC, who warned that, in the event of a no-deal:

There is a real risk that without the UK contribution [the UPC] will fail – and that would be a tragedy.”

Compared to a cleaner deal-struck exit, a no-deal situation would essentially require the UK to join as an EU outsider – a far more difficult agreement to reach, according to Mr Mooney. The potential repercussions are equally damaging to Europe as they are the UK – the UPC’s budget relies considerably on British contribution for example.

Matters are made even more complicated as a result of an impending German Constitutional Court decision on the country’s ratification of the UPC Agreement – the decision, as to whether or not German ratification is constitutional, is expected in December.

So, with just mere months to go before 29 March 2019 when the UK is planned to leave the bloc, the future of IP protection in Europe really does hang in the balance.

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