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By Peter Leung
Nov. 28 — The U.K. is moving forward on ratifying a treaty to create one patent court covering most of the European Union, Minister of State for Intellectual Property Lucy Neville-Rolfe said Nov. 28.
The announcement should encourage supporters of the Unified Patent Court (UPC), even though Parliament will have the final say on ratification. There are also outstanding questions as to whether the U.K. can participate in the court after leaving the EU. And while many industries may support the UPC, uncertainties could hinder their participation even if the treaty is ratified.
Neville-Rolfe made her statement at a meeting of the EU’s Competitiveness Council. A statement from the U.K. Intellectual Property Office (UKIPO) on the same day confirmed the government “is proceeding with preparations to ratify the Unified Patent Court Agreement.” It did not provide details, nor a firm timeline.
The agreement to create the UPC and accompanying unitary patent right requires ratification by the U.K., Germany, France and at least 10 other countries. When the U.K. vote in June to leave the EU, it called into question whether the court and patent would ever come to fruition.
London is also slated to host the specialist UPC division for hearing pharmaceutical cases, which likely would be a boon to legal practice there.
If things proceed as planned, the UPC should be in effect in the first half of 2017, European Commissioner for Internal Market, Industry, Entrepreneurship and SMEs Elzbieta Bienkowska said in a press conference following the Competitiveness Council meeting.
Tom Carver, patent partner with JA Kemp in London, told Bloomberg BNA that it’s worth watching how the UPC Preparatory Committee reacts to the announcement. In October, the committee postponed the hiring of judges; resuming that process may signal confidence that the court will soon be in force.
The Nov. 28 declaration is a surprise, given that many assumed U.K. ratification of the UPC treaty would be politically difficult, given the Brexit vote. Many assumed that the sentiment that drove that outcome would make it unlikely that the country would join an international court closely affiliated with the EU.
Prime Minister Theresa May has said the U.K. was not leaving only to return to the jurisprudence of the Court of Justice of the European Union (CJEU). However, EU law and that court’s rulings would be binding on the UPC and its participants.
The UKIPO’s statement attempts to assuage these concerns, stating that the UPC is not an EU institution but “an international patent court” with a judiciary that includes U.K. judges.
Neville-Rolfe said that the U.K. will “continue to play a full and active role” in preparing for the UPC as long as it remains an EU member.
This language is somewhat similar to previous UKIPO statements. An August statement said the U.K. “remains a signatory state of the Unified Patent Court” and will “continue to attend and participate in UPC meetings in that capacity.”
There are also unanswered questions about the general terms of the U.K.'s EU withdrawal, which could affect its UPC participation. Neville-Rolfe’s statement seemed to tacitly acknowledge that, saying the government “will seek the best deal possible as we negotiate a new agreement with the European Union.”
There are also questions as to whether the U.K. will be able to participate in the UPC once it finalizes its EU withdrawal. A position paper prepared by U.K. barristers Richard Gordon and Tom Pascoe argues that non-EU members can be part of the UPC. However, there is still uncertainty because the CJEU has not definitively ruled on the issue, which may turn off some patent filers.
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