Lawyers pour cold water on Labour’s UPC Brexit questions

The UK Labour Party has directed 170 questions to David Davis, Brexit secretary of state, including two which address issues relating to the Unified Patent Court (UPC).

However, lawyers are sceptical about the impact the questions will have.

Emily Thornberry, shadow foreign secretary, and Sir Keir Starmer, shadow Brexit secretary, sent the questions on Tuesday, October 11.

Question 110 asks: “Does the government intend to proceed with ratification of the EU agreement to establish a Unified Patent Court, in the agreement’s present form; and if not, what steps is the government taking to negotiate an alternative agreement to which it would be willing to sign up?”

The second question, number 111, asks: “If the UPC goes ahead, will the human necessities seat of its central division continue to be located in London, as prescribed in article 7(2) of the UPC agreement?”

The central division of the UPC will be based in Paris, with London (life sciences) and Munich (mechanical engineering) each hosting specialist seats.

However, Brexit has called the UK’s participation in the UPC and the London location into question.

WIPR spoke to lawyers about what effect, if any, the two questions could have on the UPC.

Joel Smith, partner at Herbert Smith Freehills, said: “Many in the industry still see the advantages in the UPC going ahead, but recognise that it would be stronger with the UK as a participant. The UK government needs to decide if it should ratify the UPC in the short term.

“More widely, the legal profession are engaged with government to bring focus to the critical changes to intellectual property law, especially where clarity in advance of leaving the EU is important for industry.”

He added that many of the changes could be made unilaterally by the UK government by implementing primary legislation in the UK, without the need for complex negotiation with the EU.

Jeremy Morton, head of IP litigation at Harbottle & Lewis, added: “These questions about the UPC are fairly far down the Labour Party’s list and likely to be equally far down the government’s list of priorities.”

He explained that the industry continues to have mixed views on the UPC and the “various potential responses to the Brexit problem, especially in terms of a UPC that excludes the UK”.

Morton said that “it seems uncertain, to say the least, that any non-EU country could participate lawfully in the UPC. The government can’t possibly answer these questions in any meaningful way right now or for the foreseeable future”.

Gordon Harris, partner at Gowling WLG, said that the letter shows a “constructive approach and Labour’s questions are important—they merit a substantive response”.

He added that the questions could have an impact on the UPC, noting that “if the government answers clearly then everyone will have a much better idea of where we stand. That will help the other participating countries to make a decision as to how best to proceed”.

On the governing Conservative’s Party’s response, Harris said that “given the speeches at their conference I suspect that they will either avoid the questions or respond negatively.

“The ‘hard Brexit’ approach is inconsistent with ceding an aspect of sovereignty to the Court of Justice of the European Union, which would be an important effect of the UK’s continued participation in the unitary patent system and the UPC,” he added.

Neil Jenkins, partner at Bird & Bird, said: "Opinion is divided as to what is the best course of action".

"Bear in mind that ratification by the UK would bring the UPC Agreement (not an EU agreement) into effect."

He added that a problem is "reaching agreement on the terms of the UK's continued participation in the UPC". If agreement cannot be reached then the UPC would continue without the UK, he said.

"The other problem is how things would need to be managed in the meantime given the uncertainty about the UK's continued participation", he added.

Thornberry and Starmer sent a letter to accompany the questions on October 11.

It said: “At the Conservative Party conference last week, the prime minister announced that the government would trigger the article 50 process before the end of March 2017.

“After today, that gives a maximum of 170 days before Britain must begin negotiating both the terms of our exit from the European Union, and also our future relationship with our European partners on a host of issues, ranging from trade arrangements to law enforcement cooperation.”

The 170 questions represent each day until article 50 is due to be triggered and aim to ensure that the government has a “clear plan of what it is intending to achieve”.

A spokesperson for the Conservative Party, told WIPR: “We are aiming to deliver the right deal for the UK and return control over all the decisions that affect people's lives to the sovereign institutions of this country.

“That's what people voted for on June 23. The prime minister has been clear that it would not be in the national interest to provide a running commentary as we shape our negotiating strategy, let alone reveal every aspect of it in advance, as Labour now appears to be suggesting.”