U.K. Government Paper May Show Path for European Patent Court

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By Peter Leung

In navigating its exit from the European Union, the U.K. will likely stress that the upcoming Unified Patent Court is the product of an international treaty, and is not an EU institution, so that the country can participate in the new patent court, which will cover most of Europe.

The U.K. government Aug. 23 released a position paper on its future relationship with the EU after its “Brexit” from the bloc. The government did not discuss the UPC, but emphasized it is common for parties to international treaties to agree to submit disputes to bodies such as the Court of Justice of the European Union, the highest court in the EU.

The U.K. is supposed to be one of the big players in the UPC, which will be accompanied by a new patent right that covers most of Europe. The U.K.’s vote to leave the EU has raised questions about its continued participation and the future of the UPC.

Prime Minister Theresa May has said that Brexit will end the CJEU’s “direct legal authority” over the U.K. But her government has also agreed to ratify the agreement to start the UPC, which is bound by CJEU decisions.

If the position paper is any indication, the U.K. government will likely argue that the CJEU’s role in the UPC doesn’t impose “direct authority” over the U.K., and instead is akin to a more limited role in ensuring the consistent application of an international treaty, U.K. patent lawyers told Bloomberg BNA.

The U.K.’s relationship with the CJEU is “highly political,” but the public is probably more concerned with the court’s role in issues such as immigration, rather than patent law, Julian Crump, principal and patent attorney at Beresford Crump LLP in London, told Bloomberg BNA.

International Treaty

Voters for the Brexit last year were motivated in part by a promise to regain the nation’s sovereignty from the EU. The CJEU is a particular sore point for Brexit supporters.

However, the U.K. Intellectual Property Office has characterized the UPC as an “international patent court” since it announced in November 2016 that the U.K. will ratify the UPC agreement. The CJEU’s role in the UPC system is also rather limited, Edward Nodder, senior partner of patent litigation at Bristows LLP in London, told Bloomberg BNA.

“It’s important to remember that the appeals court is not the CJEU—the UPC will have its own very experienced appeals court,” he said. Appeals from the UPC will be heard by the UPC’s Court of Appeal under the UPC agreement.

Limited Role

The CJEU’s role is only to interpret EU law relevant to the UPC when it needs to be clarified, Alan Johnson, partner in patent litigation at Bristows in London, told Bloomberg BNA. The court will be asked to review issues such as supplementary protection certificates, which act as patent term extensions to compensate for protection lost to regulatory approval processes, the Biotech Directive, and perhaps some initial jurisdictional questions, Johnson said. “Those are fairly restrictive, and not desperately important topics in many ways,” he said.

The UPC may not be so different from other international treaties to which the U.K. is a party. For example, the U.K. is part of the European Patent system, which allows inventors to file a single patent application examined by the European Patent Office that can later be validated into national patents in different countries.

The U.K. will continue to be part of that system, even after the Brexit. The U.K. has delegated some of its authority, such as the examination process, to the EPO, an international body, Crump said. The U.K.’s participation in the UPC, which involves the CJEU answering questions relating to EU law, doesn’t seem to be philosophically much different from the delegation of authority to the EPO, he said.

The CJEU’s role may be greatest when the court first starts, as there will be more unanswered questions and unforeseen issues.

The need to clarify the law should fall away with time, and the CJEU will have an ever dwindling role in the UPC, Nodder said.

To contact the reporter on this story: Peter Leung in Washington at pleung@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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