UK inclusion in UPC post-Brexit ‘not possible’, researchers claim

Two researchers at the Max Planck Institute for Innovation and Competition have argued that the UK will not be able to remain in the Unified Patent Court (UPC) Agreement after leaving the EU.

Matthias Lamping and Hanns Ullrich jointly published two studies in a paper called “The Impact of Brexit on Unitary Patent Protection and its Court”, where they argued that the inclusion of a post-Brexit UK in the Agreement will run contrary to the EU’s core values.

They said unitary patent protection cannot be dissociated from the “general legal order of the EU’s internal market” and be extended to the UK once it has left the EU.

“Any such extension is incompatible with the autonomous character of EU law and its institutions, will result in a legally split unity for separate and separately regulated markets, and conflict with both the UK’s and the EU’s public interests in defining and implementing a patent policy of their own,” they argued.

In the paper, published on September 10, Lamping and Ullrich said that because the UPC Agreement’s main objective is to provide a common court for EU member states that forms part of the union’s judicial system, the UK cannot be a part of this framework.

The UK’s inclusion, they added, would be incompatible with the EU’s foundational principle, “which is integration by virtue of the operation of an autonomous legal order based on a complete system of legal protection by national courts acting as ordinary courts of the union and in cooperation with the Court of Justice of the European Union”.

They reached these conclusions after noting that many in the patent law community hope to overcome the disruptive effects that the UK’s split from the EU will produce on both the territorial scope of unitary patent protection and on the UPC as a common EU court.

In their joint introduction, the researchers said “apparently large parts of the patent law community” believe that the UK may remain a contracting state to the UPC Agreement post-Brexit—but only if the rules are adapted.

Noting that Brexit is a matter of “profound general concern”, they concluded that this will not be possible.

In his section of the study, Lamping said it is not even completely comprehensible why the UK would want to delegate jurisdiction over its patents to the UPC.

“It would have to accept that all cases brought before the court are decided in the light of the ‘letter and spirit of the treaties’,” he said, adding that the UK would also have to accept that the EU could amend the UPC Agreement at any time through the “back door” of secondary EU law.

The UPC project is currently on hold because of a case in Germany, where the Constitutional Court has delayed the country’s ratifying of the UPC Agreement following a constitutional complaint.

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