EU reviewing whether UPC can stay in London
Brussels is looking into the possibility that the London division of the Unified Patent Court (UPC) might have to be relocated in light of Brexit.
It comes as formal Brexit negotiations continue today, July 18, although the issue of the UPC will not feature in the talks.
In a press statement made last week ahead of the second round of talks, which began yesterday, the EU’s chief Brexit negotiator Michel Barnier said a review of the UPC and other bodies was underway.
“There are other infrastructures linked to the membership of the union and which will have to be displaced since the UK has decided to leave the union. We are going to look at all these infrastructures, including the one related to the European unitary patent,” he said (translated from French).
“We will look at other infrastructures that will mechanically have to leave the UK when the UK voluntarily abandons its membership of the EU,” he added.
In 2015, Aldgate Tower in London was confirmed as the location for the London seat of the central division, which is due to hear cases on chemistry, including pharmaceuticals and human necessities. The central division will be based in Paris, with Munich hosting the third seat.
However, crucially, neither the UK nor Germany has ratified the UPC Agreement, meaning that it cannot come into force yet. There is also uncertainty over whether the UK can even remain in the system after it leaves the EU.
Should the UPC be moved from London, Milan has been touted as a possible replacement. The new Milan Courthouse will be the headquarters of the Italian local division.
Lorna Brazell, partner at Osborne Clarke in London, said there has been "furious speculation" about where the London division might go, and "I'm sure there will be the usual EU political decision-making to go through before it is announced".
If the court does leave London, UK litigators will be affected, she added: "It will mean fewer cases heard in London, which will reduce the advantage UK litigators have as representatives in the court, but not entirely, since cases will still be in English and bringing a native speaker is still going to help when it comes to interpreting the complexities of patents."
Barnier reminded the press conference of his close ties to the UPC and unitary patent, as he was commissioner for the internal market when the unitary patent and the UPC were approved in 2012 and 2013 respectively.
When the unitary patent was confirmed in December 2012, Barnier said it was a “historic agreement because it has taken us many decades to get here”.
In a tweet posted in November last year, he predicted that the UK will ratify the UPC Agreement and thereby clear the way for the first unitary patent in 2017.
A spoksperson for the UK Intellectual Property Office commented: "The UPC is not an EU institution: it is therefore a separate matter to any discussion of EU institutions located in the UK following Brexit. Mr Barnier was speaking in the context of the continued presence, after exit, of EU institutions located in the UK.
"Unlike the European Investment Bank and the European Medicines Agency, the UPC is not an EU institution. It is not established under the EU treaties or EU legislation. The UPC is established under an intergovernmental agreement which the EU is not a party to, and, as Mr Barnier has said, does not fall within his mandate."
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