IAM-Media: UK will not be part of Unitary Patent and Unified Patent Court
February 27, 2020
The UK will not be part of the UPC. The Office of Prime Minister Boris Johnson has confirmed this to IAM-Media.
According to the website, spokesperson Baylee Turner stated: “I can confirm that the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”
The possibility for the UK to participate in the UP system post-Brexit has been a topic of lengthy debate. Also, it has long been questioned whether the UK would want to stay in the Unitary Patent project. During the Brexit debate, it has repeatedly been said that Brexit would end the jurisdiction of European Courts in the UK.
The decision of the UK government not to participate in the Unitary Patent system means, among others, that the central division of the UPC which would be based in London, will have to be moved, possibly to Italy or the Netherlands.
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Attentive Observer
The decision of the UK government does not come as surprise for those who were realistic enough to not take any utterance of the proponents of the continued participation of post-Brexit UK in the UPC for anything else than wishful thinking. What have Mr Pors, Mooney, Tillman and co to say now? As London is mentioned expressis verbis in the UPCA there is no other way than to open the negotiations for transferring the London section to another location. It should be the opportunity to change the stupid decision locating the “Central Division” in three different places. The EPO being in Munich, the Central Division should logically be in Paris. But logic and politics are not really compatible. We have not heard the end of the UPC saga, but it’s future looks bleak. In any case it means reopening the negotiations and re ratifying the whole agreement. I therefore take bets that, should it ever come into force, it will not be before 2031 at best. The FCC can happily wait until there is a new UPCA. No need to hurry a decision. The irony is that the UPC has been strongly inspired by the UK procedure, and now UK will not participate! It is now time to rethink the whole system and to come up with a better one! There are too many approximations and problems in the UPCA so that it is high time to come up with something really helping European industry and European SMES and not just companies, mainly extra European, and having very deep pockets. Where there is will there might be way, but now we know there is no will. De profundis UPC. Rest in peace! Techrights and zoobab: FINGERS OFF!!! No need to explain!
Jan Van Hoey
"It is now time to rethink the whole system and to come up with a better one!" The patent system is not designed for small companies, if it would be, then it would probably be abolished. There is still the danger that the UPC will evolve in its own bubble, in the silence and isolation of trappist monastry: https://books.google.be/books?id=2nnKAwAAQBAJ&pg=PA124&lpg=PA124&dq=Rifkind+1951+trappist+patent+law&source=bl&ots=bKIv2nu6t0&sig=ACfU3U3iZ5PfMsDlzCCF6cMvvmz0rlZTRA&hl=fr&sa=X&ved=2ahUKEwi07uvc7vPnAhVN_KQKHRpeBZoQ6AEwAHoECAUQAQ#v=onepage&q=Rifkind%201951%20trappist%20patent%20law&f=false "The patent law does not live in the seclusion and silence of a trappist monastery. It is part and parcel within a larger competitive system. This monopoly system is seperated from the rest of the law not by a steel barrier but by a permeable membrane constantly bathed in the general substantive and procedural law."
Concerned observer
Can anyone explain to me how the CURRENT agreement can be amended to move the central division away from London? Revision of the UPC Agreement (to "improve the functioning of the court") will not be possible under Article 87(1) until AFTER the later of: (i) seven years after entry into force of the UPCA; and (ii) the point in time when 2000 infringement cases have been decided by the UPC. Thus, the only remaining option would be revision of the UPC Agreement under Article 87(2). However, it seems that there would be no legal basis to amend the UPCA under that option. This is because, as far as I am aware, there is no “international treaty relating to patents” or "Union law" that the AC could cite as basis for any amendments. Whilst the UK's Withdrawal Agreement may be many things, it is most certainly NOT a treaty "relating to patents". It is also NOT "Union law". Then there is the problem that no revision can take place before the UPCA enters into force. This creates a "cart before the horse" problem. That is, with no legal basis to set up, and to recruit judges and staff for, a location not mentioned in the current UPCA, how can the location of the central division be moved before the UPCA enters into force? If it cannot, then are we really to believe that there would be sufficient time remaining (during 2020) to effect the transfer after a theoretical entry into force of the UPCA? Finally, can we really be 100% confident that the AETR case law mentioned by Jan Van Hoey would not preclude any further ratifications of the current UPCA? With all of the above in mind, would it not now be sensible to concede that it is time to give up on the current UPCA and to think about what else can be done instead?