UPDATE: UK withdraws from the UPC

In March 2020, The House of Lords EU Justice Sub-Committee published a letter from the IP Minister, Amanda Solloway, confirming that “the UK Government will not be seeking the UK’s continued participation in the Unitary Patent and Unified Patent Court”. The justification being that “we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK”.

This stance has now been formalised as the UK has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018). A statement was made in Parliament by Amanda Solloway, Minister for Science, Research and Innovation, saying:

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.”

This was entirely expected, although it still is disappointing for other UPC countries as it makes the UPC less attractive now that an important jurisdiction is formally out. Furthermore, the original Agreement cannot proceed as it currently stands as London was meant to be a location of one of the Central Division courts, which now cannot happen.

Whilst most countries have ratified the UPC Agreement, a complaint filed by an IP Lawyer in Düsseldorf in June 2017 brought Germany’s long process to ratification of the Agreement to a halt, just as it was waiting for final signature by President Steinmeier. The complaint led to the Germany Federal Constitutional Court in Karlsruhe asking the German legislator not to put the legislation implementing the Unified Patent Court and Unitary Patent into force, as the Act of Approval of the UPC Agreement is void as it had not reached the required two-thirds majority in the German parliament.

It must be understood that irrespective of Brexit and the abovementioned withdrawal from the UPC, the UK will remain a member of the European Patent Convention, even after the Brexit withdrawal period. In this regard, European Patents will still confer the same protection in the UK regardless of the UPC and Brexit.

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