The Unitary Patent & UPC Hokey Cokey

Are we in or out?

As previously discussed in an earlier blog post, there are certain effects of BREXIT on intellectual property. These are helpfully summarised by the the Chartered Institute of Patent Attorneys (CIPA) in this new 12 page paper .However, one area that was mentioned regularly post BREXIT (by patent attorneys anyway) was the Unitary Patent and the Unified Patent Court (UPC).  Discussions about the UPC have been going on for as long as I remember, which is longer than I care to admit, but over the past few years have actually crystallised into something that looked like it was really going to happen – no great feat when you look at what it takes to get all of the necessary countries to (at least sort of) agree on the legislation – the words ‘herding cats’ comes to mind (and tenuously allows me to post a cat photo…). And then we chose BREXIT and it was all back up in the air.Initial reactions were that BREXIT would likely take the UK out of the UPC system, and issues such as where to place the Life Sciences/Chemistry section of the Court that was supposed to be in London would be back open for discussion. However, CIPA, along with other interested parties, have been looking into the issue and have now obtained counsel opinion that in fact the UK could remain part of the proposed system even if not in the EU. Richard Gordon QC of Brick Court Chambers, an expert in Constitutional and EU Law, indicates that the major obstacles to the UK joining and remaining part of the UPC are political not legal. It is suggested that, although there are many things that would need to be sorted out, and in some cases changes to the agreement would be required, the UK could continue to be part of the UPC by entering into a new international agreement with the participating EU Member States. No doubt this is a complex issue, however given that changes to the agreement are likely to be required due to BREXIT regardless of whether the UK remain a party to it or not, it does open up the possibility that the benefits of the UPC may still be open to the UK after all.If you have any queries regarding this or any other intellectual property issues, feel free to contact us.