Patience and patents

After the UK voted to leave the EU last year, it was widely assumed that the government would have to abandon its plans to join the new Unified Patent Court (UPC). A state cannot sign up to the UPC unless it is an EU member — although not all EU members have joined it.

The UK signed the UPC agreement in 2013 so that inventors could benefit from what is called a unitary patent. This is much more attractive than the current European patent, which you have to register – and may have to defend – in each country where your intellectual property is at risk.

Brexit jeopardised UK membership of the UPC – and perhaps the entire court, a branch of which was due to open in London. Late last year, though, the government announced that it would be going ahead with preparations to ratify the UPC agreement after all.

As a result, the court’s preparatory committee was hoping it could start recruiting judges from this month, so long as the treaty had received sufficient ratifications and the necessary provisional application agreement was signed by a few more states. The court would then start work on 1 December 2017.

There was some concern that the UK had not ratified the UPC treaty by the time Theresa May triggered article 50 of the Treaty on European Union on 29 March. Because the UPC agreement will not take effect until it has been ratified by the three states that held the highest number of European patents in 2012, the UK could effectively block it.

But that suggestion was played down by the UK government’s Intellectual Property Office. ‘The UK remains a signatory state of the Unified Patent Court at present,’ it said last month. ‘On 28 November, the UK government confirmed its intention to proceed with arrangements to ratify the UPC agreement. Preparations for ratification are progressing and we expect to be ready to begin the period of provisional application in the spring.’

And then May called an early general election. The necessary privileges and immunities orders had not been approved by MPs and peers before parliament was prorogued last Thursday. A similar order must be passed by the Scottish parliament before ratification. So the UK will not be able to ratify the UPC agreement before the late summer or early autumn. And that must mean that the court itself will not start hearing cases until next year.

And then what? ‘No decision has been taken on our future involvement in the court once we have left the EU,’ the intellectual property minister Jo Johnson told MPs in March. ‘That will be part of the negotiations which have not yet begun.’

But how can the UK be part of a body whose membership is restricted to EU member states? The court’s London-based division will deal with cases relating to chemistry, including pharmaceuticals and life sciences. Might that have to close when the UK leaves the EU?

‘We have interests in the Unified Patent Court,’ Johnson told the

Commons science and technology committee in January. ‘We see benefits to business, our research environment and our innovation ecosystem… but location decisions following Brexit are all going to form part of the bigger package of discussions relating to us leaving the European Union.’

Was Johnson saying that the government was hoping to remain in the UPC after Brexit? He gave little away.

‘The Unified Patent Court stands outside the European Union institutions. We are members of it and we are proceeding with preparations to ratify the agreement; but aspects of how and where it operates will all form part of the future negotiations.’

But that court has to apply EU law. It must refer any questions of interpretation to the EU court of justice (CJEU). Preliminary rulings from the CJEU will be binding on the UPC. And how can we reconcile the supremacy of EU law in UPC matters with the government’s promise, in its white paper on the so-called great repeal bill, to ‘bring an end to the jurisdiction of the CJEU in the UK’? The CJEU will still have jurisdiction over the UPC’s UK-based division for as long as the UK remains part of the court.

There is, of course, a more fundamental problem. As agreed in 2013, the UPC is a ‘court common to [EU] contracting member states’. The UK certainly met that requirement when it signed the agreement. It still does. But it will not be a contracting EU member state after Brexit.

That problem could presumably be resolved if the other contracting member states agreed to amend the UPC agreement during the next two years. So far, they have shown themselves willing to accommodate political delays in the UK as well as in Germany. We shall see how far their patience stretches.

joshua@rozenberg.net