Unified Patent Court Agreement – withdrawal of the UK

As is known, the United Kingdom withdrew from the European Union on 31 January 2020. One of the unresolved questions was the effect that this withdrawal would have on the so-called Unified Patent Court which is being set up as a litigation forum for Unified European Patents, covering most countries of the European Union. In the recent meeting of the UPC Preparatory Committee, the Chairman presented a draft version of a “Declaration on the authentic interpretation of Art. 3 of the PAP-Protocol, following the United Kingdom’s withdrawal from the Unitary Patent System”.

The effect of this Declaration would be to interpret Art. 3 of the PAP-Protocol (in which the UK is explicitly mentioned) to be the same as Art. 80 of the UPCA (which refers to the three Member States of the European Union in which the highest number of European patents in effect, i.e., previously the UK, France and Germany and since Brexit Italy, France and Germany). This “fix” is controversial and may not be legally sound, in the opinion of some commentators. It also fails to resolve the issue of the locations of the Court of First instance under Art 7 (2) in which London is explicitly referenced as having a “section”. There is no desire at this stage to open a further discussion on the locations of the courts and so this issue seems to be ignored at present.

The Preparatory Committee now expects that the first Phase of Provisional Application of the Unified Patent Court to start in late 2021 or early 2022. This will depend on the next ratification of the Agreement by one further member state.

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