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Simmons instructs Brick Court to advise on future of EU patent court

City law firms are supporting an investigation into the future of the UK’s position in the Unitary Patent Court (UPC) post-Brexit with Simmons & Simmons instructing Brick Court on the matter.

An opinion delivered by Brick Court Chambers EU law specialist Richard Gordon QC and Tom Pascoe stated that the UK could remain bound by the UPC providing it is still bound by EU law relating to the court.

Linklaters and Herbert Smith Freehills are among 20 law firms supporting the investigation into the possibility of a non-EU member state remaining part of the UPC. LB100 firms Bird & Bird, Gowling WLG, Fieldfisher, CMS Cameron McKenna and Browne Jacobson all supported the instruction.

The UPC was to have exclusive powers over European patents in member states who have ratified the agreement, but the UK’s expected exit from the EU placed its position in the court at risk.

The authors of the report said it was constitutionally possible for the UK to participate in the EU court if it signed up to all its legal provisions, but it would also need support from the Court of Justice of the European Union.

The life sciences and chemistry branch of the court was planned to sit in London. Premises for the court had already been found in 2015 after the government signed a lease for office space in Aldgate Tower.

Simmons head of IP Rowan Freeland told Legal Business: ‘We instructed counsel who were experts in EU constitutional issues, around 20 firms were involved to play a part in the thought leadership in the discussions.

‘Most of the debate around Brexit has suggested we need a hard Brexit, but this is an area where, within a tightly circumscribed area of the law it would be possible for the UK to achieve a softer Brexit and maintain the advantages of participation in the UPC.’

Freeland was joined by a consortium including the IP Federation, an industry body representing IP owners, the Chartered Institute of Patent Attorneys and several law firms that specialise in patent litigation.