Saturday, 17 September 2016

Should the UK ratify UPC (yes): can it continue post-Brexit (yes)

We are in a critical position concerning the unified patent court and unitary patent.

Netherlands has deposited its instrument of ratification, and agreement to ratification has passed the  Italian Chamber of Deputies. There is thus considerable momentum towards getting the Court established, and the question that is being asked is whether the UK and Germany (necessary signatories for the agreement to come into effect) will ratify.

Even on UK departure from the EU, continued participation by the UK is both legally feasible and practically desirable provided there is good will from the rest of the EU: and this is confirmed by the recently published opinion of Richard Gordon QC and Tom Pascoe of Brick Court Chambers a copy of which is available here.

In summary, this opinion states that for the UK to continue post-Brexit a number of criteria would need to be met. None of the legal criteria are insuperable.

In summary, quoting the main conclusions:-

The UK may only continue to participate in the unitary patent by entering into an international agreement with the EU and Member States.

Such an agreement is not necessary for the UK to ratify now: only for the UK to remain a participant post-Brexit. With appropriate political will and legal care, this is feasible.

It would be constitutionally possible for the UK to continue to participate in the UPCA after ‘Brexit’, so long as it signs up to all of the provisions of the Agreement which protect EU constitutional principles.

Were the UK to enter an EEA type agreement, this would be necessary in any case. If the UK were part of an international agreement it could withdraw at any time if this posed a practical problem.

UK divisions of the UPC would have to cease operating if the UK ratified the UPCA, without amendment, and subsequently left the EU. In those circumstances, it would be necessary to adopt detailed transitional provisions in order to protect accrued rights and to regulate the position of litigants with pending proceedings.

The detail of these provisions need not be very detailed. For example, should such a withdrawal arrangement not be achievable, the UK need only provide that:-
·         no person loses patent rights in the UK through UK withdrawal (e.g. for unitary patents in force at the time of withdrawal it could be provided that a European (UK) comes into existence in its place);
·         the result of litigation concluded before the UPC will be respected;
·         litigation already underway in the UPC at time of withdrawal would be dealt with (most simply by providing that it continue before the UPC and the result be respected (including for any new European (UK) that came into existence)).
In such circumstances it cannot be doubted that the remaining member states would make similar provision to ensure that there was no loss of rights in either direction.

The opinion of course said that nothing was certain (eminent QCs do not become eminent QCs without being prepared to consider they may be wrong - even if this is a low probability); and that the CJEU has the power to find otherwise, although no reason is given why they would find otherwise. Indeed the opinion implies that if the CJEU did find otherwise, the legality of other multilateral agreements might come into doubt (e.g. European Common Aviation Area Agreement, the International Tribunal for the Law of the Sea, and the EFTA Court).

In short, UK participation post-Brexit is eminently feasible, if politically desired. The extent of political desire of course depends on political circumstances.

While the UK is in the EU and honouring its EU obligations, ratifying is both possible and desirable: but this is a dissipating opportunity. The longer the delay, the less goodwill there will be for reaching a solution that includes the UK.

If the UK government is interested in promoting UK industry as a whole, then prompt ratification makes sense, both short term and long term.

Of course, those with a vested interest in complex and expensive litigation (large companies seeking to steamroller smaller ones by pushing up cost; some lawyers who thrive in making matters difficult so as to justify high costs; those whose jobs rely on making matters more difficult than they need be) will oppose this.

Some of these opponents may argue that delay will strengthen the UK’s negotiation position post-Brexit, despite the undoubted case that the longer the delay the less goodwill will be present to reach a conclusion including the UK. This argument for delay is self-serving nonsense. and should not be allowed to impede introduction of a system that will be to the benefit of industry in the UK, Europe at large, and the World.

So yes please HMG - ratify the UPC, and ratify in 2016.

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