U.K.'s ‘Hard Brexit’ Plans May Undermine Patent Court

Jan. 18, 2017, 12:11 AM

By Peter Leung, Bloomberg BNA

The U.K.'s plan to join the proposed Europe-wide patent court could run into conflict with Prime Minister Theresa May’s desire to leave the jurisdiction of the European Union’s highest court.

May’s Jan. 17 speech promised to “bring an end to the jurisdiction of the European Court of Justice in Britain.”

However, decisions by the Court of Justice of the EU (CJEU) will be binding on the Unified Patent Court (UPC).

May’s speech highlights the fact that the fate of the UPC is closely intertwined with the complex negotiations over the U.K.'s withdrawal from the EU.

In November, the U.K. announced that it would ratify the UPC agreement even though it will leave the EU. The new patent court is expected to start operations in 2017 and will have jurisdiction over a new unified patent right to have effect in most of Europe.

“The decision to proceed with ratification should not be seen as pre-empting the U.K.’s objectives or position in the forthcoming negotiations with the EU,” the U.K. Intellectual Property Office told Bloomberg BNA in an emailed statement.

Contradictory Goals?

The ratification announcement was a pleasant surprise to supporters of the court, because the agreement requires the U.K. to be one of at least 13 countries to ratify before the court can begin operating. But at least one pro-Brexit blog accused May of breaking her promise to restore the country’s sovereignty.

It’s unclear how requirements in the UPC agreement such as stating that decisions “of the Court of Justice of the European Union shall be binding on the Court” will be reconciled with May’s promise that British laws “will be interpreted by judges not in Luxembourg but in courts across this country.”

One possible option would be renegotiating the agreement to remove the CJEU references. However, that would be a fundamental change and would almost certainly delay the start of the court, possibly for years.

Another possibility is that the U.K. government will accept some form of indirect CJEU involvement. May’s speech railed against giving the CJEU “direct legal authority” in the U.K.

However, the U.K. IPO has characterized the UPC as an “international patent court"—not an EU institution—suggesting that CJEU control over the court might not be considered direct authority over the U.K.

U.K. Is Big UPC Player

The U.K. is to play a major role in the unitary patent system. In addition to requiring the U.K. to ratify the agreement, London was picked as the seat of the specialist court that will handle life sciences cases.

The Brexit vote raised questions about whether the U.K. could be part of the UPC after its final withdrawal from the EU.

However, organizations representing intellectual property practitioners — the IP Federation, the Chartered Institute of Patent Attorneys and the Intellectual Property Lawyers Association (IPLA) — commissioned an analysis that argued the U.K. can participate if it meets certain requirements, including agreeing to accept the primacy of EU law on patent-related matters.

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