The president of The Law Society has today urged the government to ratify the EU-focussed Unified Patent Court (UPC) agreement by the end of next month before ‘transitional arrangements’ for Brexit are finalised.
In a letter to intellectual property minister Sam Gyimah, Joe Egan said that if ratification is not completed by 23 March there is a risk that other EU member states will implement the UPC without the UK.
‘This is a concern to our members who practise intellectual property law and the companies they support, particularly as the extremely valuable life sciences and chemistry branch of the UPC is due to be set up in London,’ Egan states.
The letter adds that the government has previously recognised that the UPC is ‘not an EU institution, but an international patent court’. The UPC will hear disputes related to the proposed EU-wide unitary patent. As it stands, the agreement is open only to EU members and on some occasions disputes that hinge on EU law will be referred to the Court of Justice of the European Union (CJEU) for its interpretation. A division of the court, dedicated to life sciences and chemistry, is due to open in London’s Aldgate tower.
Obtaining approval from Gyimah is not the last step however. The Intellectual Property Office’s final role will be to prepare a document that will require rubber stamping by foreign secretary Boris Johnson, who has recently stepped up his rhetoric in calling for an end to CJEU jurisdiction.
Egan added: ‘We would hope that the UK and EU can clarify the legal basis on which the UK is able to stay in the UPC after Brexit. Negotiations will also be needed between the UPC contracting states, to revise [the agreement] in line with this legal basis.’
A further complication is added by the fact that Germany’s federal constitutional court, the Bundesverfassungsgericht, said last week that it will decide on a challenge to the UPC this year. However, the court has not provided a firm time frame for hearing the case.
German and UK ratification is required before the agreement can be formally implemented.