Lawyers have told parliament that the government should do ‘everything it can’ to grasp the opportunity of joining an EU-wide patent court – a month after Whitehall conceded a ‘no-deal’ Brexit could force the UK to withdraw from the system.
Giving evidence to the House of Lords’ EU Justice Sub-Committee yesterday Trevor Cook, partner at international firm WilmerHale, and Daniel Alexander and Charlotte May, both silks at 8 New Square, stressed the importance of the UK remaining in the Unified Patent Court (UPC).
The UPC is a proposed court between 25 EU countries, allowing businesses to enforce patents in multiple countries rather than relying on concurrent proceedings in multiple jurisdictions. It is open only to EU members and the Court of Justice of the European Union will act as a final reference in matters that relate directly to EU law.
Although the government’s line is that the court is not an EU institution it said last month that it will have to ‘explore whether it would be possible’ to remain within the system in the event of ‘no deal’.
Cook said plans for a unified system for patents have been running ‘in parallel’ through much of his 35-year career. ‘Now that its within our grasp we should be doing everything we can to seize it,’ Cook said, adding that it would be a tragedy for industry and the UK if it were forced to withdraw.
Alexander said the UPC is ‘welcomed widely’ by the industry. ‘There will need to be amendments to rules for UK to stay on,’ he said. ’There is a view that it is limited to EU member states but that is subject to debate. It’s unfair to suggest that the legal issues will be plain sailing but many people’s view is to say “where there’s will there’s a way”,’ he added.
Another stumbling block that was not mentioned is a constitutional challenge to the UPC which is being considered by Germany’s federal constitutional court. The Bundesverfassungsgericht is expected to hear the challenge before the end of the year. Germany is one of three countries that is required to ratify the agreement - along with France and the UK - before it can come into force.