Insights: UK confirms non-participation in the Unified Patent Court

It was recently announced that the UK has notified the European Council that it has withdrawn its ratification of the Unified Patent Court Agreement.

This move will not come as a surprise, since the UK Government had already indicated its intent earlier in this year. Nevertheless, this is still a disappointing development in an already fraught ongoing process.

What does the withdrawal mean for the UK’s role in the UPC?
As many will know, the Unified Patent Court (UPC) project includes new legislation that would set up new patent courts across participating EU member states. These courts would be competent to hear litigation and revocation disputes relating to European patents granted by the European Patent Office (EPO). The project is closely tied to the European Union, with the agreed legislation requiring participants to be member states of the European Union.

However, the inclusion of so-called “third countries” in the project was not envisioned, so the outcome of the 2016 Brexit referendum cast doubt on the continued involvement of the UK in the UPC. Despite this, there were hopes that the UK may still be able to participate, given the UK’s significant role in the existing European patent system. These hopes were previously shared by the UK Government, with the ratification of the UPC agreement by the UK in 2018. While the language of the existing UPC legislation complicated the practicalities of continued UK involvement (which would involve at the very least a redrafting of that legislation), it was clear that participation was possible as long as there was the political will on both sides.

Unfortunately, the recent announcement has confirmed that this political will is no longer present, at least on the side of the UK Government. By withdrawing its ratification, the door has been firmly closed on the UK’s involvement in the UPC.

What does the withdrawal mean for the UPC at large?
The withdrawal of the UK’s UPC ratification, while disappointing, does not damage the larger UPC project beyond repair, and there is hope that it can still survive. The existing UPC legislation does assume that the UK would be a participating member (for example, the legislation explicitly identifies London as a location for the Central Division of the UPC), but legislation can be changed with the agreement of participating members. From a purely legal perspective, therefore, it is still possible for the UPC to continue in spite of the UK’s announcement.

The question of its continuation is, instead, a political one. Without the UK, the UPC could be viewed by member states as a very different system from the one envisioned in the current legislation. In particular, member states may reconsider the financial obligations in view of changed economic benefits of the UPC without the UK, and they may have diverging opinions on which country should now be host to the Central Division previously slated for London. Furthermore, some member countries may wish to revisit those elements of the UPC legal procedure that were negotiated based on input from UK legal experts and in view of UK law.

There is also a concern that without the participation of the UK, the UPC may be a less attractive system for applicants, since the UK is currently one of the three most popular countries for validation of European patents under the existing system (alongside France and Germany).

These issues and others may have significant impact on how other member states may view their relationship with the UPC going forward. There is also the matter of Germany, where the ratification of the UPC must again be considered by the German legislature following a successful constitutional challenge.

The reactions to this development by the remaining participants of the UPC and other involved parties will be of great interest. In particular, the UPC preparatory committee has stated that it intends to convene “to discuss the consequences of the UK withdrawal and agree a way forward”.

No effect on UK’s involvement with European Patent Office
We can continue to reassure applicants and patentees that the United Kingdom remains an enthusiastic member of the European Patent Convention, and the decision of the UK Government to withdraw its ratification of the UPC will not prevent applicants from obtaining patent protection in the UK by means of European patents at the European Patent Office (EPO).