UK intends to stay in the Unitary Patent system post-Brexit

I am disappointed that no one has attempted to answer my query. This is because I have heard repeated assertions (from important or influential quarters) that failure to amend the UPC Agreement before Brexit would not necessarily prove fatal for the UPC ... even if it might complicate things a little. It is just such a shame that none of those from the "optimistic" camp is prepared to explain the legal mechanisms by which the UPC Agreement can arise like a phoenix from the flames of Brexit. Whilst waving farewell to the current UPC Agreement might prove hard for some to stomach, it would at least provide certainty. As we all know, (legal) uncertainty is bad for businesses. I therefore struggle to understand why anyone would want to prolong that uncertainty by making unsupported assertions that, even if it is not amended pre-Brexit, there could still be life in the current UPC Agreement. It would be far better to get the relevant, legal arguments out in the open, so that businesses can make a reasoned assessment of their chances of success.

Apparently for the governments consider Dec 2020 to be the significant date fir amending the UPCA not March 2019 provided the withdraw agreement is in place and goes more or less according to plan. Draft article 6 of the withdraw agreement says "Article 6 References to the Union and to Member States 1. For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities, except as regards: (a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions; (b) the participation in the decision-making and governance of the bodies, offices and agencies of the Union; (c) the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council4 , of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement." Which doesn't expressly refer to international agreements like the UPCA (only to Union law) but I can see why they might consider the UK remains an EU member states for purposes of UPCA during (2019-2020) transition period.

Art 2 a (v) of the draft withdraw agreement may cover it expressly "Article 2 Definitions For the purposes of this Agreement, the following definitions shall apply: (a) "Union law" means: (i) the Treaty on European Union ("TEU"), .... (v) the agreements between Member States entered into in their capacity as Member States of the Union;" Looking at the recitals of the UPCA, the UPCA would seem to come under that definition but I'm happy to be contradicted if anyone understands that it means something else.

Hmmmn. I am inclined to concede that this explanation is at least not wildly implausible... though, if relied upon, I have no doubt that it would face many legal challenges and may ultimately be found wanting. However, at this stage, I see two main issues with the proposed "escape route". Firstly, the Withdrawal Agreement is only ever intended to cover a time-limited period. Thus, relying upon that Agreement for the purposes of satisfying relevant demands of PERMANENT provisions of the UPC Agreement (including Article 2(b)) is somewhat questionable. This is not least because bringing the UPC Agreement into force under such circumstances would make it more a matter of luck than judgement that another escape route (that is robust from the perspective of EU law) would be found to cope with the end of the transitional period. Secondly, agreement upon the provisions of Article 4 of the draft Withdrawal Agreement (“Methods and principles relating to the effect, the implementation and the application of this Agreement”) has not yet been reached, even at negotiator’s level. Indeed, the 19 June 2018 joint statement makes it clear that outstanding areas include “consistent application and interpretation of the Agreement by both the Union and the UK and DISPUTE SETTLEMENT”. How (or whether) these outstanding issues are resolved may well prove crucial to the chances of success in relying upon the Withdrawal Agreement as an escape route for the current UPC Agreement. Given the recent influence demonstrated by hard-line Brexiteers on shaping the UK’s negotiating stance, as well as their ideological stance on the sovereignty of the UK (and its courts), I would not place too many bets on things working out well for the UPC.