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12 December 2016Patents

WIPR survey: Readers don’t like UK decision on UPC Agreement

WIPR readers have not welcomed the UK’s recent decision to ratify the Unified Patent Court (UPC) Agreement.

On November 28, WIPR reported that UK Minister of State for Intellectual Property Baroness Neville-Rolfe announced that the UK will implement the unitary patent and UPC.

She said: “As the prime minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role.”

Neville-Rolfe added that the new system will “provide an option for businesses that need to protect their inventions across Europe”.

However, she warned that the decision to proceed with ratification “should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU”.

Answering our latest survey, on whether readers welcomed the decision, 63% did not, while 37% felt positive about the news.

The question evoked different reactions from our readers.

“A unitary patent and UPC make sense in a European Union,” one reader said.

Another said: “Ratification should be conditional upon agreement as to the UK's continued involvement in the UPC post-Brexit.”

One added: “This is England's best interests.

“The UPC Agreement is fully consistent with the European Patent Convention and a logical extension of it,” they added.

One reader agreed: “It provides certainty and will be good for the pharmaceutical sector.”

Another added: “The other states would have gone ahead without the UK, so it’s better to be in than out. Now work needs to start on keeping the UK in the system post-Brexit, and in case this is not possible, to plan for an orderly exit.”

Legal uncertainty

Others questioned the legal certainty of such an agreement.

“On the one hand I welcome the decision as it signals that ratification of an agreement which has the potential to provide a significant boost to UK IP-intensive industries has moved another step closer.

“However this optimism is more muted than it should be as it is only an intention to ratify and not a guarantee that it will happen.

“Implementation of the UPC will go forward and the UPC should be operational as soon as possible. Legal uncertainty cannot be avoided but hopefully it will be cleared at the time the UK leaves the EU,” they said.

One reader said: “With this decision, the UK government is neglecting the vote of the people and submitting the UK to EU institutions, including the Court of Justice of the European Union (CJEU), contrary to what the government had promised to the people before.”

Another reader stated: “Considering the EU referendum result, this decision brings uncertainty to the system.

“The UK ratified the UPC in the capacity of an EU member state. The UPC is intended for EU member states only. Once the UK leaves the EU, the enforceability of the UPC decisions may be questioned.”

One said: “It is an absurd decision. The law of the UPC does assume all members are EU member states. If the UK ratifies, what happens when they leave the EU? Nobody knows and the agreement doesn't allow for the possibility.

“As a patent attorney I will strongly advise all my clients to opt all of their European patent applications and patents out of the unitary patent system as soon as possible.”

Take it or leave it

One added: “As the government decided to leave the EU, they cannot just decide when, what and how they want to take advantage of EU; take it or leave it!

“The decision brings more chaos and uncertainty, because it is in direct conflict with the referendum result rejecting subordination of UK courts to the CJEU,” they said.

Another said: “This is not a good new connection with the general attitude of countries toward the EU. The EU community is not a system where members should pick up only good cherries, but where all are involved for the good operation of the system.

“This solution will create a number of problems, just because one country decides to pursue its own egotistical interests,” they added.

Careless statement

Another reader said: “The UK cannot expect the UPC and its UPC seat to work unless it remains in the EU or at least manages to keep access to the free market. UK government representatives have previously made statements confirming that both events are unlikely.

“The UK intention to ratify the UPC contrasts with those statements and thus adds to uncertainty as to what Brexit will really mean in a couple of years’ time. It was a careless statement,” they added.

Another reader said: “A system of central determination is long overdue and desired by industry, which is where the important patents are held. Getting the system up and running sooner rather than later will enable UK practitioners and judges to take a full part and allow the system to bed down.

“If the UK leaves the EU there will still be plenty of work and if it has to go offshore, so what? The British are used to working on the continent by now,” they added.

One reader added: “There are questions that need to be answered: changes in the agreements and treaties? Leaving or remaining after Brexit? Remaining and accepting the jurisprudence of the CJEU?

“This will lead to the presence of a ‘Unified Patent Court’ in a territory outside the EU. It's nonsense,” they added.

Sounding slightly disappointed, one reader concluded: “Being an Italian patent lawyer, I was hoping to have a central division of the patent court in Italy.”

For this week’s survey, we ask: “Last week we reported that the US Supreme Court ruled in the Samsung v Apple design patent dispute that the term ‘article of manufacture’ is broad enough to encompass “both a product sold to a consumer as well as a component of that product”. Will this make determining damages for design patent infringement easier?”

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More on this story

Patents
28 November 2016   The UK government has given the go-ahead to the Unified Patent Court (UPC) Agreement, in a move that could signal the direction of Brexit.