Every effort has been made to keep to a minimum the Court of Justice of the European Union’s influence on the Unified Patent Court should the court become reality, legal academics have said. The court, part of which will sit in London, has come under fire in the anti-EU press for being part of a 'secret plan to tie us to Europe' after Brexit.
Although the Unified Patent Court is not a creation of the EU it is currently open only to EU members and will make referrals to the CJEU as a final line of appeal. However the CJEU's role will not mean it that continues to have an overriding influence on UK courts, a seminar heard last night.
The event, organised by the UK Association for European Law and held at King's College London, heard from Dr Luke McDonagh and Professor Duncan Matthews, academics at City University of London and Queen Mary University respectively, as well as Dr Christopher Stothers, partner at international firm Arnold & Porter Kaye Scholer.
McDonagh said the contracting member states of the UPC had attempted to ’keep the CJEU away’ from patent matters and that ‘every effort had been made’ to keep its influence to a minimum. ‘The UPC has the jurisdiction to hear substantive patent matters, validity and infringement. Referral to the CJEU is made only where there is a substantive issue of EU law,’ he said.
The UPC system, expected to be operational by December this year, will hear disputes related to the EU-wide unitary patent – a patent valid across all EU member states. The court will be ultimately answerable to the Court of Justice of the European Union. Despite this, the Intellectual Property Office has continually stressed that the UPC is ‘not an EU institution’.
The UK will host one of three branches of the central division in Aldgate Tower, on the edge of the City.
McDonagh noted however, that there are several important areas where the CJEU may be asked to step in, including on patentable biotech inventions and supplementary protection certificates – the extension of patent protection for pharmaceutical inventions.
Referring to a Daily Express article on the UPC ‘exposing’ a ‘secret plan to tie us to Europe’, Stothers said the arm's-length relationship to the CJEU will not be enough for some people.
McDonagh said a reference to a new arrangement for dispute resolution that could apply to different agreements, outlined in the government’s Brexit white paper, could hint at why the UK may be willing to proceed with the agreement.
But Stothers said a previous incarnation of the court, the European and Community Patents Court – which also allowed references to the CJEU – was found to be in breach of EU law, ‘apparently in part because it included non-EU member states’.
Matthews said one way to get around potential problems could be to change references in the agreement to ‘contracting member states’ to ‘contracting states’.
The event also heard that the UK may need to make ‘budget contributions’ to help keep the court operational, despite the fact it is supposed to be self-financing.
Article 36 of the UPC Agreement says that the court’s budget shall be financed by the court’s own financial revenues and, at least in the transitional period referred to in article 83 (seven years) as necessary, by contributions from the contracting member states.’