Is British Ratification of the UPC Agreement even relevant now?

Jane Lambert

Weather permitting, I shall give a talk to Queen Mary University of London Centre for Commercial Law Studies at 67-69 Lincoln's Inn Fields entitled What if anything can be salvaged from the UPC Agreement? in their Implications of Brexit on Intellectual Property Law which is due to take place between 18:00 and 20:00 tonight. I say "weather permitting" because I woke this morning to a thick covering of snow which I am about to attempt to clear from my drive and my neighbours are already working to clear from our lane.  I mentioned this seminar in Implications of Brexit on IP Law 19 Jan 2018 and my views on the topic in What if anything can be salvaged from the UPC Agreement?  26 Jan 2018 NIPC Law.

My choice of topic is particularly apposite today because Alan Johnson, a partner of Bristows, reported on Friday that almost all the steps had been taken to enable the British government to deposit an instrument of ratification (see Johnson UK legislation now ready for UK to ratify UPC Agreement 9 Feb 2018, Bristows website).  Since more than 13 other signatories to the UPC Agreement including France have now ratified that agreement there is only the constitutional challenge in Germany that is preventing the UPC from opening its doors for business.  Well, perhaps, but I see two other problems.

The first is that art 84 of the UPC Agreement makes clear that the agreement is open to signature only to EU member states and there is nothing in the agreement that provides for a signatory's withdrawal from the EU. In his evidence to the Science and Technology Committee, Mr Jo Johnson MP said on 11 Jan 2017 that the UPC Agreement is an international agreement outside the Treaties and our continued participation after Brexit is a matter for negotiation. Is that realistic? The legislation that provides for the unitary patent is a Council regulation and the agreement is peppered with articles and recitals on the primacy of EU law. One of the reasons that the European Patent Litigation Agreement which would have allowed Switzerland to participate in a Pan-European patent and patent court came to nothing is that it was thought to be incompatible with EU law. Even Richard Gordon QC and Tom Pascoe whose opinion is clutched tenaciously by those who hope we can continue  to participate in the UPC warn that any supplementary agreement risks a challenge in the CJEU. As a final nail in the coffin, the draft legislation for the proposed implementation period between 29 March 2019 and 31 Dec 2020 specifically excludes enhanced cooperation from  the body of EU law to which the UK would be subject during that time.

The second problem is that without Britain there will be much less incentive for the remaining signatories to revise the UPC Agreement.  Successive British governments have pushed  for a Pan-European patent for years because the costs of patent litigation are so much higher in common law countries than in civil law ones.   Once the UK is removed from the picture the differences in litigation costs between member states are much less.   Language may present another problem.  Spain and Italy have already challenged the UPC Agreement in the CJEU for those reasons. Their objections could resurface if English is to remain an official language after the departure of the largest English speaking member state, especially if Milan hosts a Central Division of the Court of First Instance in place of London.  Finally, the EU has lots of other priorities such as refugees and the disputes with the Polish and Hungarian governments which may well prevent its ever getting round to renegotiating the agreement.

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