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Brexit update - ratifying the UPCA

Brexit update - ratifying the UPCA

25/11/16

The party season is well underway in the legal sector and, as usual, amongst the relaxed atmosphere, gossip and rumours abound. One rumour that seems to have some credibility behind it is that the UK Government will be making an announcement concerning the Unified Patent Court Agreement (UPC) the week beginning 28 November 2016, and most likely on Monday 28 November, the day the Competiveness Council meets with the UPC on its agenda, or the next day, Tuesday 29th November. Given the timing of the announcement, i.e. even before Article 50 of the Lisbon Treaty has been invoked, and the demeanour of the source, it seems likely that the announcement will bring positive news for those in favour of the UPC.

One may wonder as to why an announcement is to be made at this stage? Well, news of ratification of the UPC may be very welcome in certain quarters of the EU. Various European bodies and commentators have expressed the opinion that the UK must be part of the UPC in order for it to succeed - something which might be thought as overselling the UK’s influence. However it is nevertheless self-evident that involvement of the UK will make the UPC stronger and more likely to succeed. An early positive announcement may be part of seeking a constructive start to Brexit negotiations, and it could be hoped that special arrangements will be put in place so that the UK can remain part of the UPC following Brexit. It might even be hoped that the UK could keep the London branch of the Central Division, which would of course be beneficial to the UK legal and patent profession and one can see that as a positive outcome.

However, it does appear to present a conundrum in the light of Prime Minister Theresa May’s statement at the Conservative party conference that “we are not leaving only to return to the jurisdiction of the European Court of Justice”. Of course the UPC is subject to the Court of Justice of the European Union - CJEU (the current name of the court the Prime Minister was referring to). It is possible that the jurisdiction of the CJEU will be a carve-out of the Prime Minister’s commitment to leaving that jurisdiction. However, such a carve-out may be unacceptable to a very significant number of the electorate that voted to leave the EU. Moreover, it may be seen to be the thin end of a wedge leading to acceptance of the jurisdiction of the CJEU in other areas of law, and trade mark and design law immediately spring to mind.

Of course, the rumour may prove to be unfounded and the announcement not take place at all, or be a signal that the UK does not intend to ratify the UPC, although as suggested earlier this appears to be unlikely.

So, is this the start of commitment to a “soft Brexit”?

We will endeavour to keep you updated.