The Unitary Patent Package and Brexit: A sign of things to come?

And so it’s official: Last week Theresa May finally submitted the UK’s Article 50 exit notification, thereby triggering for the first time the formal process of leaving the EU that was only laid down (ironically enough) with the last major revision of the founding treaties, amidst continued Conservative party infighting and the prospect of a second Scottish referendum looming large.

Unlike some of my colleagues, I chose not to express my views on the Brexit referendum in this forum at the time the result became apparent, partly because this is a family blog, but also because my overriding feeling was one of resignation. I did not feel the need to question the level of understanding or motives of those who, unlike myself, voted to leave, nor particularly to connect the vote to a more general populist sentiment sweeping the continent, or even the world. That is not necessarily to say there is no truth to this, but my own thoughts were much closer to home.

Personally, I was not surprised by the result because the English had been calling for a say on the E-word for as long as I can remember, and it was always clear to me that, by ‘say’, those calling for it meant a chance to say no. From well-to-do middle-aged suburbians living in the Home Counties to teenage labourers in the backwater of North Somerset and single mothers in Swansea (not to mention the people ‘up North’), the prevailing view tended to be a negative one, for whatever reason or reasons. Whether it was the EU’s common agricultural policy, or the alleged ‘red-tape’ emanating from Brussels, or (eventually, though less so initially) immigration, or all of the above, people had gripes with ‘Europe’ that they grumbled about on a daily basis. For those who have not ventured far beyond the confines of the M25 (which includes many Londoners themselves, let alone tourists visiting England) the general outlook may have appeared to be a different one – indeed the capital voted to remain – but those who have will know that London typically represents the exception rather than the rule. And, on top of this, the politicians themselves would jump at any chance to apportion blame to the EU if it meant they could save face domestically, while at the same time claiming the Union’s more politically palatable accomplishments as their own. So, against this backdrop, it did seem to me naïve of David Cameron to believe that he could somehow shift public opinion by means of a quick renegotiation followed by a relatively brief referendum campaign that suddenly extolled all of the virtues of EU membership. I accept that he (or whoever was in charge of the country) would have had to give the people the say they had been clamouring for eventually, but the timing of it, and preparation for it, struck me as brash – and so it has proved to be.

Still, my aim with this entry is not to cry over spilt milk. While I still harbour some feelings of regret, I am glad that the decision has at least been taken, so those who wanted out for so long can grumble about something else now (there’ll always be the weather…). Also I must admit that having Italian as well as British nationality does help to ease the pain somewhat.

On the contrary, I agree that it is necessary to look forward now. I also agree that, for legal specialists, one of the central issues at this point concerns the effect Brexit will have on the status and interpretation of laws of EU origin, especially (or at least especially for M-EPLIers) in the realm of private law. In fact, in the field of European intellectual property (IP) law, another related – but distinct – issue has arisen; namely whether the UK will still be able to participate in and apply a European system established (at least in part) by EU legislation. And it is this specific issue that I wish to address here.

The system I am referring to is that of the Unitary Patent (UP), created by a Regulation (1257/2012) adopted by means of enhanced cooperation, and the Unified Patent Court (UPC), which was established through an international agreement in 2013 signed by Member States of the EU. Although a number of Member States have since ratified that agreement, the requirements for its entry into force are yet to be fulfilled, and until they are the unitary patent itself will not apply (Article 18(2) UP Regulation).

I have blogged previously about these long-standing plans for a so-called unitary patent ‘package’. I also discussed the UP and its attendant pan-European court in my PhD thesis (Optional Instruments of the European Union – A Definitional, Normative and Explanatory study, Intersentia 2016). In a nutshell, the UP is an optional instrument of the European Union that will give natural and legal persons the option of obtaining a patent right that has unitary effect throughout the participating Member States, alongside the existing possibility to obtain a ‘European patent’ under the European Patent Convention (EPC), which for its part equates to a ‘bundle’ or collection of national rights obtained centrally from the European Patent Office in Munich but administered on a national basis (and involving also non-EU countries). Meanwhile, in those EU Member States that have adopted the UP Regulation and also ratified the UPC agreement, the UPC, as a national court ‘common to’ the Contracting States, will acquire exclusive jurisdiction over claims pertaining not only to European patents (granted on the basis of the EPC, to which all EU Member States are a party), but also to Unitary Patents with unitary effect (granted on the basis of EU law). The UPC is to consist of a Court of First Instance, comprising a central division in Paris and specialised divisions in London and Munich (as well as a number of regional and local divisions), and a Court of Appeal in Luxembourg. I described the idea of the UPC as a veritable venture into the unknown, since this would be the first EU optional instrument to be adjudicated upon by a European-level court – but with the onset of Brexit we are now faced with even more unchartered territory.

Why, I hear you ask? I mean, with the UK leaving the EU, would this not simply mean that it would remain a party to the EPC (being an international agreement), but not the UPC (which was only open to EU Member States) or the UP (being EU legislation)? And hence that those seeking patent protection in the UK could only apply for a European patent covering the territory of the UK but not a unitary patent, and the European patent would then be adjudicated upon by (purely) national courts in the UK? Well, apparently not. In fact the UK decided back in November to ratify the EU patent system, thereby ‘confounding expectations that Brexit would change the government’s plans’. So it would seem that actually the UK has the political will to remain in the Unitary Patent system post-Brexit, and that the intention is to proceed with the implementation of the unitary patent package as planned in spite of Brexit.

Of course, this raises all kinds of questions about the legal and regulatory ties the UK wishes to retain – and is permitted to retain – with the EU. It is not merely a question of the extent to (and the way in) which laws of EU origin will continue to apply in the UK in the form of national laws. What is at stake here is the continued participation of the UK in a bona fide EU system, what this could mean for both the UK and the EU, and whether it is a sign of things to come. If the UK does remain a member of the UP system, will it also be able to opt in ‘à la carte-style’ to other individual EU legislative frameworks in other areas of (private) law, and what would this entail for the ongoing applicability and interpretation of EU law as such in the UK? Also, given that the UPC was supposed to be open only to Member States, would this mean that in principle other non-EU Member States could also join the system? Or would the UK have some kind of special (perhaps even unique) status vis-à-vis the EU?

As with so many aspects of this rollercoaster of an exit process, there are many more questions than there are answers at this stage, but that makes them no less interesting!

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