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UPC – Willem Hoyng: Does Brexit mean the end of the UPC?

24 Jun 2016

Does Brexit mean the end of the UPC? By Willem Hoyng, HOYNG ROKH MONEGIER

1. It should be remembered that the UPC is not a European Union instrument but an international Treaty between countries. So this Treaty, like the European Patent Convention, has as such nothing to do with the European Union.

2. It is a widely held misconception in my view that the European Court of Justice has ruled that only EU member states can be a member of the UPC. The European Court of Justice has only held that the Supremacy of EU law has to be recognized. That is now enshrined in the Convention and this means that countries that are members of the UPC accept such supremacy of EU law.

3. What Brexit exactly means is by the way not clear. One thing is clear and that is that the UK for the moment remains a member of the European Union and that it will first have to invoke Art. 50 of the Lisbon Treaty whereafter negotiations will start which will last at least two years (and may take of course longer).

4. As everything is ready for a start of the Court in 2017 nothing prevents the UK to ratify the UPC. Of course it is uncertain what is going to happen. Undoubtedly some will call for new elections in the UK and whatever the vote will be in the present parliament or in a parliament after possible new elections will remain uncertain. So yes, there is uncertainty if the UK has the political will to ratify.

5. However, it seems clearly in UK’s interest to do so. To mention a few reasons:

  • The UPC provides also British industry with a more efficient enforcement system.
  • UK judges are among the leading patent judges in Europe and it would be very desirable for the UK to have them involved in shaping European patent law. The decision of the Court of Appeal of the UPC will certainly influence also the development of the law of the Enlarged Board of Appeal and standing on the sideline would not be desirable for the UK and for that matter for the other countries of the UPC.
  • The UK would loose London as the location of an important part of the Central Division.

6. It is clear that there should also be the political will of the other participants in the UPC to keep the UK in but there seems no sign that that is not the case. It is also in the interest of the other UPC members that an important market as the UK market is included in the territory of the UPC and that the project that is now about ready to go goes ahead.

7. So I see no necessity to await the negotiations about a Brexit. During these negotiations the UPC can be (like the Unitary Patent) a subject of discussion but there seems no reason why the UK could not remain in the UPC.

8. My conclusion is that Brexit does not have to delay the entering into force of the UPC and does also not have to lead to an UPC without the UK. However, if there is no political will in the UK to ratify then we will be confronted with a substantial further delay which can last several years.