Over past few weeks, this moggy has been scampering between several conference and events about Brexit and Intellectual Property, and the progress of unitary patent and unified patent court. Back in the days it was announced that Tim Moss would be the new Chief Executive of UK IPO. Laura Starrs, set out what the UK needs to do before being able to formally ratify the UPC Agreement. All of the legislation to implement the provision of UPC Agreement itself into UK law was complete long ago. The legislative basis was provided in IP act 2014, and the detailed provision in The Patents (European Patent with Unitary Effect and Unified Patent court).
It starts with the Isle of Man
The Isle of Man is not the part of the UK, but the patent act extends here and apparently the Isle of Man wished to be included in the system. Laura stats was back in the action at the MIP international Patent forum to inform this moggy that The Patent (Isle of Man)order 2017, was made in privy council and laid the negative resolution of the council.
But there is more to be done by the UK
More significant is the protocol on privileges and Immunities. This is required by UPC to sit in London as an international organization and the protocol was signed in December soon after the IP minister announced at competitive council meeting that UK would process to rectify UPCA. However before the protocol on privileges and Immunities can be ratified, secondary legislation is needed in both parliaments to give the effect to the protocol under both English and Scottish law. This is apparently in draft and should be appearing soon. The UPC task force is expecting ratification of the UPC agreement comes into force, and then unitary effect could be registered.
But what about Germany?
Germany has of course still not ratified either, and parliament consent to ratification is apparently hoped. Germany has long been of the view that it should be last to ratify the agreement and so determine the timings of its coming into force. The preparatory committee hopes that a German ratification will occur, allowing the sunrise period to begin, leading to the court. Merpels always expect some slippage. there was a rumor about Germany might be seeking to delay ratification in order to include the UPC as an aspect of Brexit negotiation , but Merpel has not been able to establish any serious basis for them.
But will anyone want to use it
This is the crux of the matter. At an event Brexit and IP convened by IPAN, there was some doubt about the attractiveness of the new patent and litigation system, whose membership was from the very beginning. On one hand, some voices especially from industry, have criticized the government for taking the UK to UPC/UP system without the question of continuing membership being resolved. On the other hand it was argued that there was never going to be any guarantee of the situation Post- Brexit, and the alternative would have been for the UK to be definitely out of the system, which nobody wanted as an ultimate outcome. This Kat believes that there must be very high level of confidence that if the UK leaves the Unitary Patent System, there will be provided the mechanism by which existing unitary patents can revert to having national effect in UK. Such a mechanism is actually easier to provide than to provide continuing protection in the UK after Brexit for EU trademarks and design. For patents it would be necessary to provide that a unitary patent revert to the status it had, with respect to the UK , before the unitary effect is requested. But with all uncertainties in the new system and the court is the additional certainty of what happens after Brexit one variable too far?
If UK is peripheral to the operation of a company, then the question of whether the UK is in or out of the scope of the unitary patent is simply the quantum of possible damage in an infringement action so there must be at least some patentees who will not much care either way. But will they be enough to get the system off to reasonable start.