For want of anything better (ie, real concrete news about what the UK will do regarding the UPC), more discussions as to whether the UK should or will be a member of the UPC have taken place at the AIPPI 2016 congress this week.
The World Intellectual Property Review reports that Margot Fröhlinger, principal director of patent law and multilateral affairs at the EPO, reiterated the EPO’s commitment to the UPC and its desire to see the UK participate even after Brexit.
She highlighted that the “project is ready to be implemented” and, that considering the investment that has already been made as well as the momentum the UP and UPC project created, the UPC “will not been brought to a halt”.
It also appears that the EPO would prefer the UK to be a member of the UPC and unitary patent so that neither of them lose attractiveness. The UK was in fact in 2015 the third country of origin of patent filings and has highly regarded judges from who the UPC could benefit.
Finally, Margot Fröhlinger clarified the issue of the UK’s participation to the UPC after Brexit, and said it would be legally possible for the UK to join the UPC as long as it signed safeguards to ensure the supremacy of EU law. She pointed out that if the UK were to ratify before leaving the EU, it could count on the goodwill of other EU member states.
This obviously raised the question as to what will happen if the UK does not ratify the UPC Agreement. Margot Fröhlinger appeared to think that the UPC members will have to “find a way to go ahead without the UK”. This would require a re-ratification but could probably be expedited through a simplified procedure in most contracting member states.
Clemens Heusch, Nokia’s head of European litigation, on the other hand shared his skepticism as to the UK’s ratification of the UPC Agreement, and highlighted the legal uncertainty surrounding the UK’s participation to the UPC after it leaves the EU, despite the EPO’s reassurance on this question.
Lastly, yesterday’s session also heard from Thierry Sueur, vice-president of IP at Air Liquide, a French industrial gases and services provider who underscored that the UPC and the unitary patent are, despite Brexit, still considered by industries as central for innovation and economic growth…