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That Brexit in action: UK signs pact to let Euro court judge its patents

Not too dissimilar to lighting a firework indoors – and then legging it to the nearest exit

Britain has finally signed up to Europe's unified patent court (UPC) – a long-planned simplification of the continent's patent system – but big questions still remain thanks to Brexit and a federal court challenge in Germany.

"The Minister for Intellectual Property, Sam Gyimah MP, has today confirmed that the UK has ratified the Unified Patent Court Agreement (UPCA)," the UK government said in a formal announcement.

Soon after, the ratification appeared on the European Union's treaty webpage, confirming that it is a done deal.

But despite the UK government noting that "our ratification brings the international court one step closer to reality," the truth is that thanks to the UK's planned exit from the European Union, things are much messier than they appear.

While the UK is signing the treaty as a member of the European Union, by the time the UPC is up and running, it will almost certainly not be a member of said union, if Brexit is allowed to run its course. In other words, the UK has backed a court system that, come next year, may or may not have any jurisdiction over the country.

On one level, the UK – in pursuing its efforts to break free from European laws – has just agreed to abide by European laws: the patent court's decision will have the European Court of Justice as its ultimate decider.

In reality, the issue of the UPC is now going to be put on top of the huge pile of issues to be negotiated as part of the final Brexit deal. Not one is sure whether, at that point, if the UK will then stick with the agreement it literally just signed.

So, why?

So why did it sign the UPC? Because under its makeup, the UK had to sign the UPC for it to become legal. The same is true for France and Germany – the logic being that these three countries account for the bulk of European patents.

And so, the UK did what many feel was the right thing to do: sign the UPC despite the uncertainty of Brexit in order to let the rest of Europe get on with a unified parent court.

There's only one problem: Germany hasn't signed the UPC either.

And that is because the German federal court is looking into whether the agreement is legal under German law.

Back in June 2017, Germany's constitutional court – the Bundesverfassungsgericht – directed the German president not to sign the UPC into law because it had received a formal complaint.

Due to the secretive nature of the court, it took a while to find out what the details of that complaint actually were, but they eventually emerged: the bill has not been properly passed through the German Parliament; Brexit meant that it was no longer legal; and "reforms" at the European Patent Office (EPO) has undermined the UPC's independence.

There has been an enormous amount of legal argument over the validity of those complaints, and the Bundesverfassungsgericht took them seriously enough to ask more than two dozen expert organizations to supply their opinions on the issue for the court's judges to review and digest before making a decision.

So, when?

The case was officially added to the court's caseload in February this year, and German legal experts say that the earliest a decision can be made is mid-May. It is possible that decision will be to dismiss the complaint altogether – in which case Germany will almost certainly rush through approval and the UPC will open two years later than planned.

But, if the court does decide to hear the case, that could push the whole process back and risk straying into the same timeline as the UK's exit from the European Union, planned for March 2019.

At that point, it's anyone's guess as to what would happen: whether people would find some way to move forward, or if the whole treaty would need to be renegotiated.

Regardless of all of those legal interactions, there still remains a very significant problem at the heart of the European patent system – and that is the European Patent Office (EPO), which has been in virtual meltdown thanks to the extraordinary campaign by EPO president Benoit Battistelli against his own staff.

Thankfully for the EPO, Battistelli will be leaving later this year but his determined drive to get more patents approved each year has led to a complete breakdown in communication between EPO staff and examiners and its management, a drop in patent quality, and earned him numerous rebukes from international organizations and European politicians.

Even if the UPC does gets passed, it is still going to take years and significant effort to repair the damage done by Battistelli. ®

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