No Unified Patent Court or Unitary Patent for Post-Brexit UK

The United Kingdom (UK) issued a statement on Feb. 27, 2020, cementing a new position that the country will take no steps to participate in the Unified Patent Court.

Proposed European Unitary Patent

As noted in previous client alerts, the Unified Patent Court Agreement (UPCA) is an agreement between member states of the European Union (EU) that fundamentally changes the European patent landscape for both applicants and litigants. Broadly, the UPCA seeks to “improve the enforcement of patents and the defence against unfounded claims … and to enhance legal certainty … for litigation relating to the infringement and validity of patents” across the world’s largest trading block. (UPCA, pg. 4). The UPCA is not yet in force.

More specifically, the UPCA, once ratified and in force, affords owners of a patent granted by the European Patent Office (EPO) an option to classify that patent as one having “unitary effect” throughout substantially all EU member states. Disputes arising from unitary patents will be heard by a single court, namely the Unified Patent Court (UPC), and decisions relating to those disputes, including infringement and invalidity decisions, will be binding throughout the EU.

Each signatory to the UPCA is required to accept the supremacy of the Court of Justice of the European Union (CJEU) in addition to all other EU laws, rules and regulations that impact the UPC and/or Unitary Patents (UPs), a proposition that obviously contravenes the nationalist motivations that inspired the Brexit vote in 2016.

Despite this, however, five months after Brexit, the then-seated UK government issued a surprising press release confirming, at that time, that the country would continue preparations for ratification of the UPCA. A timeline for ratification was not provided.

Over four years later, and after Brexit has officially occurred, some clarity has been finally provided through an emailed statement to Law Business Research (dba IAM) in which a representative of the UK government confirmed: "[T]he UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and [that is] bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation."

In view of this statement, it appears clear that Europe’s second-largest economy will not seek to advance ratification of the UPCA in any manner. As a result, if the UPCA comes into force, enforcement of an EPO patent classified as having unitary effect will likely require adjudication through both a British court and the UPC, substantially increasing complexity and expense for litigants, frustrating the entire purpose of the UPC.

Please note that BHFS attorneys are only licensed in the U.S.; this alert is not intended to provide advice on European law.

This document is intended to provide you with general information regarding the United Kingdom's decision to not participate in the Unified Patent Court Agreement. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.