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8 November 2019PatentsRory O'Neill

Challenges remain for UK and the UPC: European parliament

A European Parliament report has said that “innovative legal solutions” will be required for the UK to be a member of the Unified Patent Court (UPC) post-Brexit.

The report, published on Tuesday, November 5, said that although it was not “legally impossible” for the UK to participate in the UPC after leaving the EU, a number of obstacles remained.

In chief, these include the jurisdiction of the Court of Justice of the European Union (CJEU), the report said.

The UK ratified the UPC Agreement (UPCA) in April 2018, after indicating its intention to leave the EU.

According to the report, this sends a “somewhat mixed message” on the UK’s commitment to the UPC, given that the UPC is closely intertwined with EU law and the CJEU.

“Maintaining the UK within the UPCA would need innovative legal solutions, as the UPC is an international court applying EU law -and the reason for Brexit was all about not applying EU law any more,” the report claimed.

All EU actors remain committed to the “primacy” of EU law and the CJEU having the final say on its interpretation, it added.

Kevin Mooney, partner at  Simmons & Simmons in London, said that the UK government’s message on the UPC has been consistent.

“I don’t think there are mixed messages at all,” Mooney said.

“Everything that’s been published by the government has said that we wish to stay in the UPC project, whether or not there’s a withdrawal agreement”.

He said that he hoped other EU member states would be amenable to UK participation in the UPC.

“It’s in the interests of Europe that the UK is part of this project,” he said.

The European Parliament report said that, despite the difficulties outlined, the role of the CJEU in applying EU patent law did not “expressly exclude” a non-EU member state forming part of the UPC.

The report was commissioned by the parliament’s legal affairs committee, and produced by the parliament’s department for citizens’ rights and constitutional affairs.

The UPCA has not yet come into effect as it is awaiting ratification by Germany.

In 17, the German Federal Constitutional Court said that ratification of the treaty was on hold pending resolution of a constitutional complaint.

WIPR has contacted the UK government’s Department for Exiting the EU for comment.

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