Among several omissions from last week’s ‘position paper’ setting out how the government plans to resolve disputes with the EU after Brexit is any mention of the Unified Patent Court, an arm of which is now taking physical shape in London. Obiter’s suspicion is that Whitehall does not want to call attention to the potential presence of a European court on British soil.
To this end, the UK Intellectual Property Office continues to insist that the Unified Patent Court is nothing to do with the EU, but rather an ‘international agreement’ set up ‘under international law by a non-EU intergovernmental agreement’. This rather downplays the fact that the system is open only to EU members – and will refer certain interpretations of EU law to the Court of Justice of the EU.
But Obiter detects a sign of the mask slipping. The Munich-based European Patent Office, which will grant the unified patents, published a guide for future patent owners last month in which it says the UK’s participation will be a ‘political decision’ for the EU, the UK and member states.
The EPO’s description seemed to jog memories at the IPO. A spokesperson, who said the office’s position on the court remained unchanged, told Obiter: ‘The options for the UK’s intellectual property regime after EU exit, including our relationship with the UPC, will be the subject of negotiation.’