Lawyers fear further unitary patent delay after Conservative election win
Lawyers have told WIPR that the Conservative Party’s victory in the UK election and an expected referendum on EU membership may result in further delays to the implementation of the unitary patent and Unified Patent Court.
The Conservative Party won a majority in the election, held on Thursday (May 7), after it obtained 331 out of the 650 House of Commons seats contested.
Before the election, the Conservatives had promised to hold a referendum on the UK’s membership of the EU by 2017.
In his post-election speech, the party’s leader and the UK’s new prime minister David Cameron said: “We will deliver that in-out referendum.”
An exact date for the referendum has not yet been confirmed.
But lawyers fear that the possibility of an ‘out’ vote and the subsequent departure from the EU could lead to uncertainty over the UK’s relationship with the unitary patent and concurrent UPC.
Nations that are not part of the EU cannot participate in the agreement.
Jonathan Radcliffe, partner at law firm Charles Russell, said: “The UPC system cannot come into force until the UK gives its formal ratification. But with the promised referendum on EU membership looming, formally signing up the UPC—will at the very least—be thrown into the balance.
“Full UPC implementation will almost certainly be pushed back well beyond the optimists’ pre-election best guess of early 2017,” he added.
In order for the unitary patent to come into effect, 13 nations, which must include the UK, France and Germany are required to ratify the proposals.
So far, seven nations: Austria, Belgium, Denmark, France, Malta, Sweden and Luxembourg have fully ratified the agreement.
The location of the courts will be Paris, Munich and London.
But Alan Johnson, partner at law firm Bristows, said that, despite the UK being one of the nations required to ratify the agreement, the proposals may still proceed without it.
According to the agreement, the unitary patent system will be ratified after the three nations where the highest number of European patents took effect in the year before it is created accept the proposals.
Johnson, writing on Bristow’s UPC blog, said that the Netherlands would therefore take the place of the UK as “the third mandatory ratification”.
Gwilym Roberts, partner at Kilburn & Strode, said leaving the EU could have “giant ramifications” for patent owners.
He said: “If we do see an EU referendum, then the outcome could have giant ramifications across all areas of society and the economy and intellectual property would not be excluded.
“While the proposed unitary patent system is flawed, the inability of UK businesses and services to make use of it would be detrimental to the UK’s position in Europe and globally,” he added.
Last week, the Court of Justice of the European Union cleared a major legal hurdle related to the unitary patent agreement after it rejected Spain’s challenge to its legality.
The Conservative Party had not responded to a request for comment at the time of publication.
