Would Brexit mean the end of the Unified Patent Court?

The Unitary European Patent system aims to support innovation by cutting red tape, costs and save time by automatically validating a single patent in all EU countries that have ratified the Unified Patent Court treaty and which have at the same time adhered to the UE regulation on the European unitary patent.

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It will provide significant advantages for inventors, as under the current European Patent Office (EPO) scheme the European patents after grant by the EPO are still treated as national rights, subject to the national court jurisdictions of each member state, and in certain countries also to the filing of a translation of granted patent in the national language.

As part of the plans, the new Unified Patent Court will have a central division based in three locations:  Paris, for disputes about physics and electricity inventions; Munich, for mechanical engineering patents; and Aldgate Tower in London, for pharmaceuticals and life sciences, chemistry and metallurgy patent disputes.

It will rely on expert judges recruited from countries that have ratified the treaty. Potential British and other judges have already been pre-selected. It has taken about 40 years to reach an agreement on the new system.

As the new system involves accepting EU law, the basic principle of state liability for the implementation of EU law and the jurisdiction of the European Court of Justice in Luxembourg, it appears the UK Government will be reluctant to ratify the treaty after Brexit vote.

The Unified Patent Court is distinct and independent of the European institutions, and organised by its own treaty, but as mandated by a preliminary opinion delivered by the ECJ it is open to ratification only by EU countries.  The Unified Patent Court treaty has not yet been ratified by Germany and the UK, although France and 10 other countries in Europe have done so. Italy has started the process of ratification. The UK is still a “contracting member state” of the UPC system, so until further notice, it still continues to participate and vote in meetings and will remain active in the initiative.

As Italy is the country that has the highest number of patent filings after Germany UK and France, under the treaty rules it would be Italy that would be considered as the location for chemistry – pharmaceutical disputes of the Central division of new court, if the UK refuses to ratify.

Italy, and likely Milan, that will also host a local division of the court, could soon be a candidate for hosting the central division. Milan is a key centre for innovation in life sciences and IP expertise. The court in Milan currently manages most parts of the Italian patent litigation and the experienced Milan specialist court is appreciated by IP practitioners, for being  efficient, reliable, open and receptive to new international IP trends, and for its carefully reasoned decisions.

In a separate development, the Italian Government together with local regional authorities of Lombardia and the municipality of Milan also recently adopted a common proposal, for Milan to host the offices of the European Medicine Agency.  Milan is ready to reflect its key central role in Europe for pharma innovation, research and patent litigation.

On this basis, an Italian trade body for patent attorneys and trademark experts recently wrote to the Italian Prime Minister to request that he officially applies for Milan to be selected for the new court location.

If the UK refuses to ratify the treaty, the current agreement may be renegotiated. The implementation of the new court will also be delayed.

Interestingly, a renegotiation could lead to a new opportunity, for countries that are not current members of the European Union to be eligible to join in the Unified Patent Court system. Such an enlargement might encourage the UK Government to support the recognise the supremacy of the European Court and of EU law, only for the purposes of the Unified Patent Court disputes. But this even if theoretically feasible, it may be politically unacceptable.

This would also be helpful for the pharma sector itself, as it strongly relies on patent protection and a unified jurisdiction may offer an opportunity to protect its innovation and to resolve disputes promptly and more efficiently in the European Union. Delays in ratification and in the implementation of the new court would represent a step back on the development of IP law in Europe and for European competitiveness in the global landscape.

 

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