The UK could remain part of the Unified Patent Court even after it leaves the European Union but would need to enter into a new agreement, a report has claimed.
According to the report commissioned by the Chartered Institute of Patent Attorneys, it is legally possible for the UK to remain in the system and for London to continue to host the central division in Aldgate Tower.
However, the report notes that the UK would need to enter into a new international agreement to continue to stay in the system and prevent the UK division from being forced to close. The UK would also be required to implement EU law before the court.
The report, published yesterday, was created after CIPA, the IP Federation and the Intellectual Property Lawyers Association instructed EU law specialist Richard Gordon QC to address questions about the system and the potential effect of Brexit.
Gordon said he saw ‘no reason’ why the UK should not be able to participate in the system.
According to Gordon, the international agreement would have to be implemented by domestic legislation.
He said that ‘several commentators have noted’ that a similar agreement had been envisaged by Article 142 of the European Patent Convention.
According to Article 142: ‘Any group of contracting states, which has provided by a special agreement that a European patent granted for those states has a unitary character throughout their territories, may provide that a European patent may only be granted jointly in respect of all those states’.
The report added that the CJEU’s 2009 opinion, which assessed the compatibility of the draft UPC Agreement with EU law, did not expressly state that the UPC agreement may only lawfully be entered into between EU member states.
Tony Rollins, president of CIPA, said: ‘There is now a legal path to securing our continued participation in the UPC and unitary patent following Brexit, although this will take some time.
‘We are pleased that counsel’s opinion supports our position, but more work needs to be done before the UK can ratify the UPC Agreement.’
However, the report notes there is a possibility the Court of Justice of the European Union could reach a different conclusion if challenged on the issue.
If the UK ratified the UPC Agreement, without amendment, and subsequently left the EU, the UK division would have to close, the report added.