New advice from Whitehall on the consequences for a 'no deal' exit from the European Union concedes for the first time that this could mean withdrawal from the embryonic 25-nation Unified Patent Court. Until now the government has insisted that the court, part of which is due to be based in Aldgate Tower, London, was not an EU institution.
However a notice issued today by the Department for Business, Energy and Industrial Strategy states that the UK will have to 'explore whether it would be possible to remain within the Unified Patent Court and unitary patent systems in a ‘no deal’ scenario'.
The note also points out that there is still a possibility that the court may come into being in any case as ratification by Germany - which is subject to a court challenge - is still outstanding. 'If the Unified Patent Court is never fully ratified, the domestic legislation to bring it into force will never take effect in the UK.'
The Unified Patent Court is intended to provide an international patent court between 25 EU countries, allowing businesses to enforce the new unitary patent system through a single court. It was originally scheduled to open in 2017. Although not an EU institution it is open only to EU members and the Court of Justice of the European Union will act as a court of final reference in matters relating to European law.
Today's notice states that if the Unified Patent Court comes into force and the UK needs to withdraw from both the Unified Patent Court and unitary patent, businesses will no longer be able to use the Unified Patent Court and unitary patent to protect their inventions within the UK.
The notice states that ’only a few areas’ of UK patent law stem from EU legislation. However one important area relates to patented pharmaceutical products and agrochemicals where EU law provides for a supplementary protection certificates which grant an additional period of protection after a patent has run out.