Richard Gordon QC and Tom Pascoe have provided an opinion to the IP Federation, the Chartered Institute of Patent Attorneys and the Intellectual Property Lawyers Association on the consequences of ‘Brexit’ for the UK’s participation in the Unified Patent Court (“UPC”).
The UPC is a proposed court, common to a number of European Member States, with jurisdiction to hear patent infringement and revocation proceedings. The Life Sciences/Chemistry section of the court is planned to sit in London. The premises for the court have already been procured and specialist judges have been recruited. However, its operation has been delayed by the fact that a number of Member States, including the UK, have yet to ratify the Unified Patent Court Agreement (“UPCA”), the international convention which brings the court into existence.
The UK government is now considering whether it should ratify the Agreement in light of the ‘Brexit’ referendum result. If it does not do so, the Agreement (as currently drafted) cannot come into force, and the entire scheme will therefore be jeopardised for all Member States.
In outline, the opinion of Richard Gordon QC and Tom Pascoe is that it is legally possible for the UK to continue to participate in the UPCA after ‘Brexit’, provided that it signs up to sufficient safeguards to protect EU constitutional principles, such as the supremacy of EU law and the ability to make preliminary references to the CJEU.
Since its publication last Friday, the opinion has been circulated widely. Below is a selection of news articles which have reported its findings:
The opinion appears here.