Friday, 24 June 2016

A new Unitary patent after UK leave-vote?

Yesterday the UK voted to leave the European Union. I find it really sad that they have decided that they're better off without us. Anyway, that is how it is.

So what will this mean for the unitary patent?

With the options that are currently on the table, either the UK ratifies as planned in which case there needs to be no delay at all, or the UK does not ratify. In the latter case, the unitary patent could still come into effect, but only after the UK formally ceases to be an EU member. This will take years.

Another option is that the unitary patent is abandoned in its present form, and renegotiated. Participating in the unitary patent is at present restricted to EU member states. A new unitary patent could be open to, say, EPO member states.

Interestingly, the Agreement on a unitary patent court is not an EU regulation but an international agreement. So the door is already cracked open for a broader membership. On the other hand, the Agreement in its present wording is explicitly restricted to EU members, and makes numerous references to union law. In fact, the primacy of European Union law is explicitly recognized in the Agreement. Although, a full renegotiation of the unitary patent is possible, this option would certainly take many years as well.

They only option I can see which does not significantly delay the unitary patent is that the UK ratify the agreement. Rationally a case can be made for ratifying even while leaving. It is in everyone's interest to get a cheaper and easier patent system, even if only on the mainland. However, I'm not sure how high on the political agenda this topic will remain in the UK, given the numerous other issues that need to be sorted out. Moreover, this option would transfer further sovereignty, even if only temporarily. We'll have to wait and see.

Photo "Storm Chasing May 2014" by Craig ONeal via Flickr under a CC-By 2.0 license (no changes made)

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