The chief Brexit negotiator for the European Union has said the EU is considering the future of the arm of the proposed Unified Patent Court that is supposed to be housed in London, in what is the biggest indication so far that the UK may have to pull out of the court.
Michel Barnier said during a question and answer session with journalists ahead of the next stage of Brexit negotiations that there are ‘infrastructures linked to the status of being an EU member’ which will have to be displaced. ‘We are going to look at all these infrastructures, including the one related to the European unitary patent,’ Barnier clarified.
As it stands, London is due to host a branch of the central division of the UPC.
The court, which has been in the pipeline for several years, is currently only open to EU members and will hear disputes related to EU wide unitary patents. Once operational it will have a UK base in Aldgate Tower, on the edge of the City of London, as well as other central divisions in France and Germany.
It will, on occasion need to refer certain matters that are specifically related to EU law to the Court of Justice of the European Union. Further, as it stands only lawyers registered to practise before a court in an EU member state are able to litigate through the court. That would prevent UK-based solicitors and barristers acting for clients in the court after Brexit, though UK attorneys will still have use of it.
The agreement is awaiting official approval from the UK and German government before it can come into force, although a court case in Germany and this week’s parliamentary recess in the UK has slowed down proceedings.
Although it has EU ties, the UK Intellectual Property Office has stressed the court is ‘not an EU institution’ and instead refers to it as an ‘international court’.
Barnier added that the EU would also look at other infrastructures that will ‘mechanically have to leave the UK when the UK voluntarily abandons its membership of the EU'.
‘The decision to leave the European Union has many consequences. That is why we must approach this negotiation seriously and quickly on the substance,’ he said.
Despite Barnier’s warning, UK-based IP solicitors and IP organisations both believe participation in the agreement will be possible even if the UK is not an EU member. A report commissioned by the Chartered Institute of Patent Attorneys last year found that it could be legally possible for the UK to remain in the system and for London to continue to host the central division even after Brexit.
An IPO spokesperson said its future relationship with the UPC is a matter for the negotiations, and it would not be appropriate to set out a unilateral position now.
They added: 'The UPC is not an EU institution: it is therefore a separate matter to any discussion of EU institutions located in the UK following Brexit. Mr Barnier was speaking in the context of the continued presence, after Brexit, of EU institutions located in the UK. Unlike the European Investment Bank and the European Medicines Agency, the UPC is not an EU institution. It is not established under the EU treaties or EU legislation. The UPC is established under an intergovernmental agreement which the EU is not a party to, and, as Mr Barnier has said, does not fall within his mandate.'