Unified Patent Court: UK's decision to ratify likely to be welcomed by tech businesses

The UK has announced that, despite the decision to leave the EU, it will press ahead and ratify the Unified Patent Court.  This new pan-EU court, the product of over 30 years of planning and negotiation, had been due to open its doors for business in the first quarter of 2017 but vital preparations – such as the recruitment of judges – were put on hold after the Brexit vote.

The new court is intended to take much of the unpredictability and expense out of enforcing patent rights across borders.  At present, although the majority of patents in Europe are granted through a centralised process, when it comes to enforcement businesses have to take separate legal actions in each and every national court where an infringement is taking place.  Despite the fact that the law is broadly harmonised, the differences in procedure including rules of evidence frequently leads to inconsistent decisions being given on the same patent by the different courts.  With the UPC, it will be possible to bring a single action to resolve the question for all of the participating states (which includes all EU Member States apart from Spain, Poland and Croatia).  See here for our discussion of how the new system is expected to work.

The UK branch will hear cases relating to ‘human necessities’

The UK’s decision to ratify may well have been swayed by the extent of investment the UK government has already made in the system, having taken the lead in the procurement of the IT systems for the court as well as leasing and equipping a building in the City to house the UK branch of the court.  The UK branch will hear cases relating to ‘human necessities’ including pharmaceuticals and chemicals, and is expected to bring a substantial flow of new work into the country.

The decision to ratify is likely to be widely supported by UK technology businesses, which have struggled with the existing fragmented system. The focus will now turn to ensuring that when the new court opens, probably late this year, does indeed operate in a unified and predictable fashion despite being spread across a number of divisions around Europe. It remains to be seen, however, whether the UK can continue to participate once it has actually left the EU.  Under the UPC system, the European Court of Justice has final say on various issues such as the patentability of inventions in the field of genetic engineering, or the application of competition rules to patent licence agreements.   Boris Johnson, now Foreign Secretary, was particularly critical during the Leave campaign of the powers of the ‘unelected judges’ of the Court of Justice, and it may be that the Brexit supporters oppose allowing it to maintain control even over such a narrow aspect of the laws applied in the UK.