At a meeting of the EU’s Competitiveness Council, 28 November, the UK’s Intellectual Property Minister Lady Neville-Rolfe announced that the UK Government intends to ratify the Agreement on a Unified Patent Court.

Its significance:

As the UK (along with France and Germany) is one of the three countries whose ratification of the treaty is essential for the UPC and Unitary Patent system to come into effect. In view of the fact that membership of the UPC and Unitary Patent entails recognizing the supremacy of a supranational court with the power to refer questions of law to the Court of Justice of the European Union, UK ratification of the Unitary Patent Package seemed to be politically unthinkable.  This announcement turns that perception inside-out.

As the necessary legislation to implement the UPC Agreement into UK law already received Parliamentary approval prior to the Referendum, only the formalities of Royal Assent and deposition of the UK’s instrument of ratification are now necessary to complete the process. According to the text of the official announcement released by the UK Intellectual Property Office, the UK intends to work towards bringing the UPC agreement into force “as soon as possible”.

A total of 11 countries, including France, have now ratified the Agreement, with at least three more on the way besides the UK and Germany.  This means that, subject to UK ratification taking place in the near future, all eyes will turn to Germany as the country which will determine the starting date for the biggest shake-up of the European patent system in decades.  Assuming that Germany does not delay with its own ratification, the UPC and Unitary Patent could potentially become reality by Spring or Summer 2017, only a little behind schedule.

Now that one set of uncertainties has been dispelled, another takes its place.  Will the UK be able to remain a member of the system after “Brexit” (Britain exit) takes place, probably in mid-2019? Will the UPC’s Central Division retain its chemistry and life sciences branch in London?  What will the “Brexit camp” in British politics make of this announcement, and will they try to prevent ratification, or at least frustrate any moves towards the UK remaining a member of this system after Brexit? These are few questions which remain unanswered.

Effects of Brexit on 2nd Medical use patents:

I don’t think this would have direct effect on it might have a long term effect, conditions for it-

  • If UK ratifies UPC then it might also become subject of supremacy of European court of justice & that’ll mean that any interpretation in that kind of problem would become subject to a decision of ECJ at some point.
  • However if they ratifies UPC & then again exit from it as decided in 2019 once UK is planning to leave as mentioned in commission then off course it wouldn’t be a part of Unified Patent System anymore & it would go its own way & can make its own decision or could be aligned with already made decisions or not with existing decisions. As Patent System would not change & will remain same as EPC & regulatory system will change as it is national & if you’re not a part of that club you can go your own way & can make divergent solutions which won’t be of any interest only, because for UK it’ll be that and for other countries it’ll be the other solution.

Other than that under this new regime, businesses will be able to protect and enforce their patent rights across Europe in a more streamlined way – with a single patent and through a single patent court.

The court will make it easier for British businesses to protect their ideas and inventions from being illegally copied by companies in other countries.

 

UK Minister of State for Intellectual Property, Baroness Neville Rolfe said:

  • The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe to develop this option.
  • As the Prime Minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.
  • But 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.

And if all these happens then I don’t see any reason for UK to exit this UPC’s agreement even in 2019.

For now the UK will continue with preparations for ratification over the coming months. It will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible.