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Could the post-Brexit UK still participate in the Unitary Patent?

Steve Jones considers whether a post-Brexit UK could still participate in the EU Unitary Patent. 

Much has been written about the impact of the UK’s likely departure from the EU on the implementation of the proposed EU Unitary Patent (UP) and Unified Patent Court (UPC). As things stand, those systems can only come into force if the Agreement on the UPC is ratified by the UK Government, and it seems unlikely that ratification will occur while the UK moves towards “Brexit”. Once the UK has finally left the EU, the requirement for UK ratification will fall away. Since it seems the UK will not actually leave the EU until 2019 at the earliest, this suggests that implementation of the UP and UPC will at best be delayed, and it has even been suggested that the non-involvement of the UK could derail the entire project.

Many in the IP world are keen to see the UP/UPC system come into effect and for a way to be found for the UK to participate in it, even if no longer a member of the EU. A group of UK professional bodies, including the Chartered Institute of Patent Attorneys, has sought advice from an EU and constitutional law expert Queen’s Counsel and has made his opinion available here.

Counsel’s opinion makes clear that the major obstacles to the post-Brexit UK participating in the UP/UPC are political, rather than legal. The UK could enter into a new international agreement with the participating EU Member States that would allow it to be a part of the system, though the UK’s continued participation would require it to submit to EU law regarding Court proceedings before the Court and it would also need to accept a corresponding jurisdiction and enforcement regime. Counsel further believes that, provided changes are made to the UPC Agreement, it is possible in principle for the UK to be the seat of the Life Sciences/Chemistry branch of the UPC’s Central Division, as previously agreed.

Thus, Counsel’s opinion suggests that steps could be taken to enable the participation of the post-Brexit UK in the UP/UPC system, which might help to ensure that the system survives the departure of the UK from the EU. Whether those steps will actually be taken is, of course, a matter of conjecture at this time.

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