On 26 April 2018, the United Kingdom deposited the instruments of ratification of the Unified Patent Court Agreement (UPCA).

The UPC Preparatory Committee has confidently declared that this year has started well, although some work remains to be done before the provisional application phase can begin – not least the outcome of the appeal against the UPCA pending before the Constitutional Court German Federal Government which will influence the speed of the march towards the final phase of the project. See full communication from the Committee.

In fact, the announcement from the United Kingdom Intellectual Property Office (UKIPO) and the statement released by the Minister for Intellectual Property, Sam Gyimah MP, make it clear that this ratification triggers another important issue in the Brexit negotiations, rather than being a decisive event in a positive sense for the UPC. Notably, UKIPO highlighted that “the unique nature of the proposed tribunal means that the UK's future relationship with the Unified Court will be subject to negotiations with its European exit partners” (see full announcement). The Minister for IP said that “we are now in a good position to ensure that we turn the changes – which will be the centerpiece of our exit – into opportunities. One such opportunity is to ensure that we continue to strengthen and develop the international IP framework” (see full statement).

In this regard, even the controversially optimistic opinion on the consequences of Brexit for the UPC, given in September 2016 by Richard Gordon and Tom Pascoe (of Brick Court Chambers), emphasized that the UK would be required to accept the supremacy of the law of the EU as a whole with respect to all patent disputes that fall under the jurisdiction of the UPC and that this could be politically burdensome.

In fact, the art. 20 UPCA establishes that the Court applies Union law in its entirety and respects its primacy (see also articles 21 and 24 UPCA).

The UPCA will also have to be modified for (only apparently) formal rules. For example, art. 1 UPCA establishes that “the UPC is a court common to the Contracting Member States and is therefore subject to the same obligations under Union law as any other court of the Contracting Member States”, and art. 2 UPCA establishes that "'Member State' means a Member State of the European Union" and "'Contracting Member State' means a Member State party to this Agreement". Another noteworthy amendment is required to the art. 7 UPCA, which currently states that a section of the UPC will be in London.

Therefore, a diplomatic conference appears to be needed to introduce the possibility for the UK, after leaving the EU, to be part of the UPCA.

Provided that the Court of Justice of the EU does not rule against this possibility.

In conclusion, ratification by the United Kingdom brings the provisional application phase of the UPC closer, but does not make the United Kingdom's participation in the UPC any more certain.

Unless the rising voices against leaving (e.g. see among others: Confederation of British Industry, 1, 2, 3; European Movement; Open Britain) succeed in reversing Brexit.

Andrea Scilletta