The UK is to ratify the Europe-wide Unified Patent Court (UPC) agreement and set up a court in London despite fears Brexit would halt negotiations.
Although the vote to leave the European Union in June led many lawyers to question the future of the agreement, which would create a single patent regime across Europe, the government has confirmed it would press ahead with the court.
In an announcement yesterday (28 November), IP Minister of State Baroness Neville Rolfe said: ‘The decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.’
The government said that the UPC was not itself an EU institution, rather an international court. This assertion comes even though the UPC agreement ‘is open to accession by any member state of the European Union’ and is ‘not open to states outside of the European Union’.
The court would still require the patent regime to accept judgements by the European Court of Justice, a key EU institution.
City IP partners reacted favourably to the decision. Allen & Overy partner Marc Döring said: ‘It looks like we are going to ratify, which is perhaps a surprise, although the government hasn’t said when exactly this might happen. You can debate that the agreement has not arisen from the EU, but politically we are now going to ratify something which effectively gives away some sovereignty to a European court.’
Taylor Wessing head international patents Simon Cohen told Legal Business: ‘The view after Brexit was that it was unlikely to ratify, but the EU will go ahead with or without the UK and the legal opinion was we could still join the UPC. The government probably thinks it is in a good position to ratify and deal with it as and when Brexit happens. There is a business will for us to be part of it and I expect the government will investigate a way to be part of it.’
In recent months, Simmons & Simmons had instructed Brick Court Chambers to advise on the future of the UPC, arguing the UK’s branch of the court would be possible if it signed up to all its legal provisions. As many as 20 law firms, including Linklaters, Herbert Smith Freehills, CMS Cameron McKenna and Bird & Bird supported the instruction.