Wednesday, June 29, 2016 Brexit? What brexit?

The UK should ratify the agreement on a unified patent court, get the unitary patent started and continue to be a member even after the Brexit is formalized.

This is the position taken by Willem Hoyng (member of the drafting committee of the UPC Rules of Proceedings and well known litigator) over at EPLAW.

This means the unitary patent system should soon come into effect as if no Brexit ever happened. London would keep its court, the EU would have its unitary patents, and everybody would be happy. Unitary patents would not necessarily be valid in the UK, but even this might be arranged with a separate international “Extension Agreement”.

According to Hoyng this is possible because the agreement on a unified patent court is an international treaty not an EU regulation, just like the  European Patent Convention. Although, the
agreement does not allow the participation of non-EU Member States, it is not required to leave the unified patent court should a country become a non-Member State.

Among the respondents at EPLAW is Leo Steenbeek (Principal IP Counsel of Philips), and he does not agree. Apart from the question whether it would make sense for country to engage in further international cooperation when it wishes to retreat from EU, there is also a question if the Court of Justice would allow this.

The position of the UK would be a bit like the one originally envisioned for Italy, part of the UPC but not (yet) of the unitary patent. If Hoyng says it's possible I'm willing to listen, but some confirmation on the legality of all this would be good. For example, an opinion of the Court of Justice on this would give the legal certainty needed for this venture. Moreover, whether there is the political will to make this happen? I'm not so sure. 

In any case, whether or not the UK can stay in after the Brexit, in any scenario it would be best if the UK would continue to ratify the agreement without delay. At least this would allow a unitary patent without the UK, and who knows, perhaps a bit more.

Photo by skeeze via Pixabay under a CC0 license (no changes made).