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20 September 2016Patents

AIPPI 2016: UPC members must push on if UK says ‘no’, says EPO

The European Patent Office (EPO) has said that if the UK does not ratify the Unified Patent Court (UPC) Agreement, the deal’s signatories must push on together and make the court work.

This would require making small technical amendments to the agreement, meaning any countries already signed up would need to re-ratify the deal, according to Margot Fröhlinger, principal director of patent law and multilateral affairs at the EPO.

She was speaking today, September 20, at the 2016 AIPPI World Congress in Milan.

The UK’s ratification is required for the court to take effect, but following Brexit there is much legal and political uncertainty about the UK’s involvement. To date, 11 countries have ratified the agreement.

Discussing the implications of Brexit on the unitary patent and UPC, Fröhlinger said it’s not an easy task as nobody knows what they will be or what Brexit means - “I have no crystal ball”.

She reminded the audience that the EPO wants the unitary patent and UPC to go ahead, ideally with the UK participating even after Brexit, and that the project is ready to be implemented.

“There has been so much work and investment that has created so much momentum that we think it will not be brought to a halt,” she argued.

The EPO wants the UK’s involvement because the unitary patent and UPC would be much less attractive without the UK, “a major patent country”, and the UPC will benefit from the UK judges, who are seen as high quality.

Despite arguments to the contrary, Fröhlinger said it would be legally possible for the UK to join the UPC as long as it signed safeguards to ensure the supremacy of EU law.

She noted that there is a political challenge surrounding ratification following Brexit, but added: “We hear that in other capitals there is a clear preference for the UK to ratify so it can continue to participate. If the UK ratifies now, it can count on the goodwill of other EU member states.”

But, if the UK does not ratify or waits to see how Brexit plays out, the UPC members will have to “find a way to go ahead without the UK”, Fröhlinger said.

She admitted that the requisite re-ratification in light of technical changes was a drawback, but said most countries should have expedited procedures for doing this.

The 2016 AIPPI World Congress ends today.

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