AIPLA 2016: Brexit a hurdle that will be cleared, says EPO official

The Unified Patent Court (UPC) and unitary patent will become a reality, with or without the UK, according to a senior official at the European Patent Office (EPO).

Michael Fröhlich, director of international legal affairs at the EPO, was speaking in a personal capacity at the American Intellectual Property Law Association’s (AIPLA)  2016 Annual Meeting in Washington, DC.

He said: “The issue of the Brexit vote is the last hurdle in what has been a hurdle chase since the beginning. There have been hurdles that have been higher than what Brexit has posed … and this last one will be taken successfully.”

Slovenia is about to become the 12th country to ratify the UPC Agreement in the coming days, with Italy expected to become the 13th, according to Fröhlich, speaking on Friday, October 28.

He added that Germany plans to finish the parliamentary ratification process by the end of year.

Fröhlich said: “As far as the UPC Agreement is concerned, the UK could ratify now as it is still an EU member state. Should the UK ratify now, it is in the meantime clear that there are no legal problems for the UK’s participation after it has left the EU.”

Should the UK ratify the agreement, the new system will come into force in 2017. If it does not, some delay will occur but, “rest assured, the new system will come into force soon”

“This time, things are really different from previous attempts [to introduce a unitary patent] … which have failed in the past. This time around, everything is ready,” said Fröhlich.

“Not only is political will unbroken in participating member states but the complete legal framework is in place and the technical and operational implementation are about to be completed.”

However, others are not so optimistic.

Andreas von Falck, who heads the international intellectual property, media and technology group at Hogan Lovells, speaking in a personal capacity, said he did not believe the UPC Agreement would enter into force.

“Realistically, who is going to invest into a system, including a court in the UK, which is going to cost several million, when it is clear… that the aim of the UK government is to leave the EU in the foreseeable future?” he asked.

After Brexit, the UK could no longer ratify the agreement so it would be renegotiated between the remaining EU member states [included in the system], according to von Falck.

“There’s a big question as to whether there’s a political desire, and also political energy, to go through all of that yet again and to renegotiate a system where everything that was allocated to the UK previously is then allocated to another member state,” he said.

He added that as part of the negotiation, the states would need to discuss which country would take the life sciences seat of the central division, which the UK is meant to be hosting.

“Is the UPC going to be sufficiently attractive after the exit of the UK in order for industry to support, and in a sense finance, a renewed approach towards the UPC?” von Falck questioned.

The AIPLA 2016 Annual Meeting finished on October 28.