UK formally abandons Europe’s Unified Patent Court, Germany plans to move forward nevertheless

But will the UPC be legal – or even worthwhile – without Britain?

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Analysis The UK has formally ditched the Unified Patent Court (UPC), a project to create a single pan-European patent system that would fix the confusing mess of contradictory laws currently in place.

In a written statement in the House of Commons on Monday, the British undersecretary for science, research and innovation Amanda Solloway noted that: “Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court.”

The reason is, of course Brexit. “In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation,” she said.

The decision may appear obvious, but for several years the UK claimed it would be able to remain a part of the UPC despite leaving the EU – and that it wanted to do so. That position changed when Boris Johnson became the British Prime Minister.

The whole situation was complicated further when the German Constitutional Court ruled in March that the nation's ratification of the UPC was unconstitutional – the way the German parliament had approved the patent court, back in 2017, was insufficiently representative.

Critically, however, the German Constitutional Court effectively rejected two other arguments against the UPC’s validity. The first was that without the UK, the entire approach was unconstitutional.

The second is that changes forced through at the European Patent Office (EPO) by its former president Benoît Battistelli – all of which gave his office more power – undermined the EPO’s independence and, by extension, the UPC.

Still pushing

Despite the decision going against the UPC, it left the way open for Germany to re-ratify the court, and last week the government published the responses to a consultation it held over how to do that in a way that would be constitutional.

Many of the responses were very supportive of the UPC, and urged the German government to move forward as fast as possible with the plan, though many were also wary or critical. One of the biggest issues is that the original UPC plan required that three nations – France, Germany and the UK – all sign up to it because they are by far home to the largest number of patents registered in the EU.

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Without all three, it was agreed, there was little point in having a unified patent in the first place. In addition, London was due to become the location for one of three specialist patent courts that would deal with patent issues going forward.

With the UK now definitely out, some question whether it still makes sense to push ahead with the UPC or simply stick with the current system. Big business and much of the patent industry – or, at least, those that will benefit most from a single patent system – are keen to keep moving forward, however. Organizations representing engineering firms (mechanical and electrical) have lent their support, as has the pharmaceutical industry. Big intellectual property firms are on board.

But support is far from universal: some have called for a complete overhaul of the UPC, in large part because of the loss of the UK. Much of the argument is over what will happen with cases that were due to go to the proposed London court.

Some argue that those cases should simply be split between the other locations in Paris and Munich, but other European cities and countries see an opportunity and argue that there needs to be a formal process for deciding on a third city.

Rewrite?

There’s also a philosophical aspect: much of the UPC’s functioning was built around legal processes developed through the English legal system – something reinforced by the oversized role of the United States in patents worldwide. The UPC should consider rebuilding itself more on the German and French legal systems now the UK is out, some argue.

And there are those that have argued all along that the UPC is a bad idea because it will make patents more expensive overall – something that is even more likely now that the UK won’t be inside the system. Putting too much power over how patents are dealt with into a single system and reducing the oversight power of the European Parliament and the European Court of Justice, especially when it comes to complying with the European Convention on Human Rights, could have serious consequences.

There is also a strong likelihood that the UPC will benefit big business and leave smaller companies and businesses at a disadvantage.

The whole idea of the UPC has been fought for over a decade now, making many its adherents borderline fanatical in making it a reality, even more so given frequent setbacks. In their unerring support, however, many seem willing to overlook or turn a blind eye to serious problems, not least of which is the mess that is the European Patent Office (EPO).

Despite finally getting rid of its former head Battistelli – who attempted to turn the organization into more a fiefdom over which he ruled than an open and complex international organization – many of the issues and inequities he introduced into the EPO have still not been resolved under his successor.

The EPO is, of course, a big fan of the UPC and insists the UK leaving is a mere trifle to the larger European dream of a single patent system; a system that would give it significantly more power:

“These economic benefits for European companies and especially SMEs will not be affected by the announcement of the United Kingdom,” it insisted in its submission to the German government.

“Even without the UK, the UP package will lead to significant simplification and cost reduction for the companies of the participating EU member states, which is also largely recognized by European companies.” ®


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