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The IP Federation responds to the announcement that the UK will ratify the UPCA

02 December 2016

The IP Federation notes the UK’s intention to ratify the Unified Patent Court Agreement.

The IP Federation recognises the benefits for industry that can come from the Unitary Patent and Unified Patent Court and calls the UK and other contracting states to work together urgently to enable the UK to stay in the system after Brexit and to prepare transitional provisions in case this is not possible.

On 28 November 2016 the UK Government confirmed that it is proceeding with preparations to ratify the Unified Patent Court Agreement.

The IP Federation recognises the aim of the Unitary Patent (UP) and Unified Patent Court (UPC) to improve the ability of industry to obtain patents in a number of EU states at a reasonable cost and to engage in litigation in a single forum across the major markets of the EU. The presence of the Chemistry Division of the Central Court in London is valued as providing an enhanced opportunity to include the UK’s rich tradition of effective patent litigation within the system of the UPC.

The members of the IP Federation hold significant numbers of patents and are expected to be major users of the system once it is running smoothly. The IP Federation is therefore concerned that the UPC functions effectively in the long term and is a factor contributing to a positive climate for business in Europe.

It is noted that the Unified Patent Court Agreement does not provide any mechanism for what happens if a contracting state ceases to be part of the EU. The IP Federation therefore recognises that the forthcoming withdrawal of the UK from the EU in 2019 leads to uncertainty for industry over what will happen to the UK part of Unitary Patents and to ongoing litigation at the UPC covering the UK.

There are two options for what will happen.

The first option is for legal instruments to be developed that enable the UK to remain part of the system or for appropriate reassurances to be provided if this is not thought necessary. The IP Federation has already been involved in commissioning the Gordon-Pascoe opinion which considers that an additional agreement would be needed between the UK, the EU and the other contracting states. The IP Federation therefore calls upon the UK and the other contracting states to work together urgently to provide a legally secure route by which the UK can remain in the UPC after Brexit. If this work also makes it possible for other states which are not part of the EU but which are part of the European Patent Organisation to join the UPC this would be welcomed.

The second option relates to the situation where, for whatever reason, the UK cannot remain part of the UPC on Brexit. In that case the UK government needs to provide assurances that any Unitary Patents will be recognised as UK national patents. The UK and other contracting states will also need to produce transitional arrangements to govern what will happen to ongoing litigation at the UPC and to ensure the continued functioning of the court.

Given that the clock is now ticking for the commencement of the UP and UPC, the IP Federation calls on both the UK and the other contracting states to commence work on the legal framework that will be needed for both of these options as soon as possible. It will be vital for the UK and other con­tracting states to provide opportunities for industry to provide input into the shape of this legal framework. The IP Federation looks forward to playing a constructive part in this process.

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