Organisations representing intellectual property professionals, including the Law Society, have urged the government to remain a member of the Unified Patent Court (UPC) system post-Brexit.

The request appears in a position paper sent to ministers late last year. The paper, seen by the Gazette, is signed by representatives from the Law Society, the IP Bar Association, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys (CITMA) and IP Federation.

It describes the UPC – currently open only to EU members - as ‘one of the most significant developments in IP dispute resolution of recent years’.

Once operational, the UPC will hear disputes relating to a newly created patent that will be valid across the EU. Disputes will be heard at separate courts, including one in London. Cases that centre on the interpretation of EU directives may be sent to the European Court of Justice (ECJ) for a final opinion.

Despite the decision to leave the EU, the UK has almost completed ratifying an agreement that will bring the court into life. However, as yet, the government has not revealed whether it intends to remain in the system post-Brexit.

According to the position paper, the government should;

  • Confirm that it is the UK’s intention to stay in the UPC, and that the UK is prepared to abide by the terms of the UPC Agreement, following Brexit; 

  • Work towards the coming into effect of the UPC as soon as reasonably practicable in collaboration with other UPC member states and; 

  • Work with other UPC member states and EU institutions to ensure there are no legal or practical obstacles to UK participation in the UPC and the unitary patent, following Brexit, on equal terms with other member states. 

Despite the calls for the UK’s guranteed participation, there is a cloud hanging over the UPC. A constitutional challenge in Germany – which, alongside France and the UK, must ratify the agreement before it can come into force – could yet derail the system.

Düsseldorf intellectual property attorney Dr Ingve Stjerna, who has challenged the constitutionality of the German legislation enabling ratification, has said that the UK’s proposal to ratify the UPC is ‘hardly reconcilable’ with its commitment to leave the jurisdiction of the ECJ.

The position paper also calls on the government to enable the UK to continue to participate in the EU’s harmonised system for protecting and enforcing trade mark and design rights or, if that is not achievable, legislate for the automatic continuation in the UK of EU rights through the introduction of new domestic UK rights.

UK solicitors and attorneys should also be granted continued rights of representation at ‘all relevant EU fora’, the paper says. This view was backed by CITMA in a business case published last month.