The Unified Patent Court (UPC) will be a common court to the Member States of the European Union, it will therefore be a part of each Member State’s judicial system. As the name suggests, it will only hear cases that relate to European patents.
Latvia ratified the Unified Patent Court Agreement (UPCA) in January, and yesterday (26 April 2018) the UK’s government deposited the instrument of ratification with the EU Commission.
The President of the Chartered Institute of Patent Attorneys, Stephen Jones, explained that “The UPC agreement is a good example of international co-operation which is consistent with the UK moving forward as an innovation-led economy,”
One branch of the UPC will be based in London; the UK Intellectual Property Office (UKIPO) has already rented a place for the UPC in Aldgate Tower. The UK division will hear cases that revolve around disputed patents that relate to pharmaceuticals and life sciences.
The patents that the UPC rules upon will be continue to be granted by the European Patent Office, based in Munich and a non EU organisation. The UPC is created by way of a, non EU, international treaty but unitary patents will be granted by EU regulations.
As it stands, the UPC is only available to Member States of the European Union. Obviously with Brexit looming this may pose some difficulties. Indeed the UKIPO explained that “The unique nature of the proposed court means that the UK’s future relationship with the UPC will be subject to negotiation with European partners as we leave the EU,”
It appears that when Brexit does come around the UK will still remain a party to the UPC, and with a division of the UPC being based in London, one would hope so too! The chair of the UPC Preparatory Committee, Alexander Ramsay states that “Some of the wording of the agreement will have to be amended after the UK leaves the EU but I would very much like Britain to participate in the UPC in the long term. The whole of Europe will benefit from the system having the broadest possible geographical coverage.”
The Chartered Institute of Patent Attorneys has provided guidance that confirms the UPC is a non EU instrument and therefore it is an instrument that the UK is able to play a full part in despite Brexit.
It has been suggested that the UPC will bring up to £200m into the British legal system per year.
However, whilst the UK has ratified the UPC the implementation of the Court is far from close. Germany is yet to ratify the UPC, this is due to a complaint being filed against the UPC. The AfD (Alternative für Deutschland, Alternative for Germany) has filed a complaint that has asked for the repeal of two Acts of German Parliament that would enable Germany to be a party to the UPC.
The AfD claims that the Acts are unconstitutional; this claim has been made on the provision that whilst the UPC agreement was approved unanimously by German Parliament, only 35 out of 630 members were present. Furthermore, it is claimed that judges of the UPC will lack independence.
So whilst the UK has ratified the UPC, even despite Brexit! The UPC does have a long way to go before we will hear of the first case.