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I guess this is goodbye, old pals?  


2nd Mar 2020

The Government has just published a document setting out the UK’s approach to the negotiations with the EU that may have put an end once and for all to the UK’s involvement in the Unitary Patents (UP) project. 

As noted not too long ago here, after the Brexit referendum vote, under both the May administration and the Johnson administration, the UK government has repeatedly expressed an intention to bring an end to the European Court of Justice (ECJ)’s jurisdiction.

In a way, then, it cannot come as a major surprise that in the UK’s negotiating objectives – which have just been published here – the Government has essentially reiterated that concept.  Whilst a future relationship with the EU is envisaged that is based on friendly cooperation between sovereign equals, this is meant to be one where both parties respect one another’s legal autonomy, and the Government has explicitly stated that they “will not agree to any obligations for UK laws to be aligned with the EU’s, or for the EU’s institutions, including the ECJ, to have any jurisdiction in the UK.

Back in 2011 the ECJ appeared to indicate in their Opinion 1/09 that the UPC agreement does require the member states to respect EU law and, in particular, as far as the UPC system is concerned, the overarching jurisdiction of the ECJ.

On this basis, even though no formal announcement has been made as concerns the future participation of the UK to the UPC, it is very difficult to see how, going forward, the UK could still play any role, let alone a prominent one, in the UPC system.

If this proves to be the case, this is likely to have a rather significant impact on the ongoing process of ratification of the UPC Agreement, since the text thereof directly refers to the UK and to London, which was originally chosen as the location of one of the three central divisions of the UP Court.  In effect, ratification of the UPC Agreement by the UK – the instrument for which was actually signed back in April 2018 – was one of the essential requirements for the whole system to get going.

However, some revision of the UPC Agreement is now, in all likelihood, going to be required, and a new location will presumably have to be chosen for one of the three central UP Court divisions.

Although further developments may change the state of things, at the very least it would seem that the EPO’s President’s hopes that the UP package could become operational by the end of 2020 have just been severely dampened.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

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Andrea Civera
Senior Associate
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