Legislation that will allow the EU-focused Unified Patent Court to open a branch in the UK has been laid in Scotland, despite uncertainty surrounding the entire system.
A statutory instrument giving the court its ‘legal personality’ in the UK was laid before the Scottish Parliament on 31 August.
As is the case in Westminster, the Scottish Parliament will need to debate the SI before it can be formerly approved. The statutory instrument was laid in Westminster on 26 June.
The SI was due to be debated in the House of Commons in July but was pulled from the agenda at the last minute. According to an Intellectual Property Office spokesperson this was so ‘other urgent parliamentary business’ could take priority. A spokesperson today confirmed there is no update yet on when the debate will be rescheduled.
The UPC is also awaiting official approval from the German government before it can come into force, although a court case there has slowed down proceedings. The committee tasked with implementing the court said in June that a planned start date of December this year would not be met.
The UPC is currently only open to EU member states, though Croatia, Poland and Spain are abstaining from the scheme.
The court will hear disputes related to unitary patents, which will be granted in all the UPC member states. Once operational the court will have a UK base in Aldgate Tower in 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. Its CJEU link, and the government’s decision to press on with the ratification process despite Brexit, sparked speculation that the UK could be heading for a ’soft Brexit’.
The IPO stresses that the court is ‘not an EU institution’ and instead refers to it as an ‘international court set up by an international agreement’.
An IPO spokesperson told the Gazette the Scottish order will take 54 sitting days to progress, during which time there will be a debate in the Justice Committee.
The spokesperson added that secondary legislation can be laid during recess periods at Holyrood, unlike in Westminster, but that the process of scrutiny and debate doesn't start until parliament is sitting. The first sitting day was Monday, 4 September.