Volte-Face on the Unified Patent Court Agreement

Jane Lambert

While hardly unexpected. the confirmation given yesterday to Joff Wild and others that "the UK will not be seeking involvement in the UP/UPC system." is nonetheless regrettable.   No country stood to gain more from the Unified Parent Court and the unitary patent than the UK because it would have reduced considerably the costs of patent prosecution in Europe and patent enforcement in the UK.  That is why both the Gowers Review of Intellectual Property and the Hargreaves Review of Intellectual Property and Growth urged HM government to push for a single European patent for the UK and other EU member states with a unified court for the resolution of disputes over such patents.

The excuse given to Mr Wild and other journalists for this country's volte-face is that:

"Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”

That was just as much the case on World IP Day 2018 when the British government ratified the Unified Patent Court agreement as it is now, yet the government was then prepared to overlook that inconvenient truth because the benefits of participating in the unitary patent and Unified Patent Court were obvious and considerable (see the press release by the IPO and former Minister for IP "UK ratifies the Unified Patent Court Agreement" 26 April 2018).   Part of the Central Division of the Court of First Instance was to be located in London. The Court would have been accessible to individual inventors, start-ups and small businesses not only because the costs of litigation would have been much lower than those of the Patents Court but also because legal aid would have been restored.

A massive amount of time and money has been spent by the parties to the UPC Agreement and others since the treaty was concluded just over 7 years ago.  The question, for now, is what (if anything) can be salvaged?  Well, for the last year or so the courtrooms at Aldgate Tower which the government acquired and fitted out at not inconsiderable expense have been used as CCTV studios for hearings in the Trade Marks Registry. I was recently offered the use of one of them but it was cheaper and more convenient for me as well as for my clients to appear in person before the hearing officer in Newport.  If the UPC Agreement is to remain in force it will have to be renegotiated and it is not obvious that there is an inclination to do that.   According to TaylorWessing's Patent Map, it is already cheaper to bring patent infringement proceedings in every continental jurisdiction than it is in England.   There is therefore much less incentive to abandon national patents and court systems for a unitary patent and Unified Patent Court than there was in the UK.

The Patents Court in England is greatly reduced in judge power since the sad and untimely death of Mr Justice Henry Carr and the elevation of Mr Justice Arnold to the Court of Appeal.  Neither the Patents Court nor the IPEC diary shows much sign of activity.  When the Government announced its new immigration system which is to come into force on 1 Jan 2021 the Home Secretary dismissed the concerns of market gardeners, care home operators and others whose business models depend on temporary migrant labour with an admonition to invest in automation.  Its attitude to intellectual property which is essential for investment in innovation is not all that different.

Anyone wishing to discuss this article or patent prosecution and enforcement generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.