The English Patents Court in a split UK-UPC system, by Paul England, Taylor Wessing

It is hoped that the UK will participate in the UPC and Unitary Patent system, post-Brexit. If the UK does not participate, the relationship between the English Patents Court and the UPC in the resulting split UK-UPC system is speculative at this stage. However, there are authorities to suggest that the Patents Court may serve an enhanced strategic role in such a system, as part of an overall European strategy. This may include the following in respect of European patents and Unitary Patents:

1.    An extension of its present role as a court producing fast, detailed and rigorously reasoned judgments of persuasive value in later UPC proceedings on the merits;

2.    A source of pre-emptive and/or expedited decisions on validity as a persuasive factor in decisions to stay bifurcated infringement proceedings in the UPC;

3.    A source of pre-emptive and/or expedited decisions on validity and/or infringement as a persuasive factor in decisions to award a preliminary injunction in the UPC;

4.    Pre-emptive ‘British Torpedo’ cross-border declarations of non-infringement, impacting on UPC infringement proceedings;

5.    A source of pre-emptive cross-border ‘Arrow Declarations’ for the purpose of supporting invalidity challenges in the UPC.

Participation of the UK in the UPC system will help secure the aims of that system in providing a single jurisdiction that is more simple and cost effective than that currently available. The alternative, split UK-UPC system, will introduce new strategic options for parties through pre-emptive procedures in the English Patents Court. However, this will come at the cost of increasing complexity in European patent litigation and undermining the aims of the UPC.

A copy of the entire contribution can be found here.