The UK Supreme Court announced last week that the UK Government could not trigger article 50 without Parliamentary approval. The ruling was followed by the publication by the UK government of the Brexit bill , for a vote in Parliament next week, while the actual trigger of article 50 is planned for the end of March. However, Theresa May’s speech which preceded the Supreme Court’s ruling has left many wondering about the actual possibility for the UK to remain a member of the UPC once it has left the EU.
In fact, although the UK government expressed its support for the ratification of the UPCA many questions remain. Indeed, neither Baroness Neville Rolfe’s announcement nor the intervention of the new Minister of State for Universities, Science, Research and Innovation (Jo Johnson), clarify whether it is possible for a state which is a Member of the European Union when the UPCA comes into force, to remain a contracting state after it leaves the European Union, whether the UPCA could be amended to allow for any non-EU members to become UPC members, or what will happen to the London central division if the UK cannot remain a member of the UPC. Mr Johnson only stated that the UK’s 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”. Overall he highlighted that the aforementioned questions will only be answered by the Brexit negotiations.
However, with the UPC planned to become operational in December 2017, the question of the continuity of UK’s participation to the UPC once it has left the EU is central for all users of the court and future unitary patent applicants.
In this regard, the UK IP Federation issued two statements . In its first statement dated December 2016, it urges contracting states to “work together to enable the UK to stay in the system after Brexit and to prepare transitional provisions in case this is not possible“. It further calls for “legal instruments to be developed that enable the UK to remain part of the system or for appropriate reassurances to be provided if this is not thought necessary” and “upon the UK and the other contracting states to work together urgently to provide a legally secure route by which the UK can remain in the UPC after Brexit.” In case the UK cannot remain part of the UPC after Brexit the IP Federation asks the UK government to “provide assurances that any Unitary Patents will be recognised as UK national patents. The UK and other contracting states will also need to produce transitional arrangements to govern what will happen to ongoing litigation at the UPC and to ensure the continued functioning of the court.”
In its second statement dated January 2017, the signatories which describe themselves as “IP intensive companies in the United Kingdom” list 7 specific demands and notably that “all accrued and pending intellectual property rights (…) be preserved in the UK post-Brexit;” that “(t)he UK (…) provide(s) for the ability to obtain equivalent UK rights in the UK post-Brexit”, and that once the UPC is established “the involvement of non-EU, European Patent Convention Contracting States (e.g. Switzerland, Norway) in the UPC (…) (is) explored”.
To the best of our knowledge, these statements have not been publicly answered by the UK government. This is not to say however that the UK is not making progress on the ratification of the UPCA, as showed by the fact that the Protocol on Priviledges and Immunities was laid in Parliament on 20th January 2017 in the form of a Command Paper (government publications presented to parliament) and an explanatory memorandum. This protocol will ensure that the UPC judges benefit from the privileges and immunities necessary to their function and to the operation of the UPC.