The UK government has made it clear that it no longer intends to participate in the Unified Patent Court, the long-planned single court for enforcing patents across Europe, which was due to go live later this year. There has been no formal announcement yet but IP stakeholders were notified of the UK government’s revised position on 27 February 2020. This reversed the previous government’s stance that UPC membership would be “explored” - the UK ratified the UPC Agreement on this basis in 2018.
The driving force behind the decision appears to be the current government’s desire to avoid the jurisdiction of the CJEU at all costs, even as part of an international court dealing with patent law, which largely does not derive from the EU acquis. According to the UK’s negotiating objectives “we will not agree to any obligations for our laws to be aligned with the EU's, or for the EU's institutions, including the Court of Justice, to have any jurisdiction in the UK." That is in direct conflict with the UPC Agreement’s recitals, which note “that the Court of Justice of the European Union is to ensure the uniformity of the Union legal order and the primacy of European Union law.” and articles 20 and 21 which require the Court to apply EU law and be bound by the decisions of the CJEU.
In principle, the UPC Agreement could still enter into force before the end of the transitional period, if Germany ratifies it. Germany's ratification was halted after a constitutional complaint was lodged on 31 March 2017. The complainant argues that there have been breaches of the German Constitution, which restricts any surrender of German sovereignty. Those restrictions are derived from the right to democracy (Art. 38 Sec. 1 German Constitution) (see our UPC webpage here). The German Federal Constitutional Court (the Bundesverfassungsgericht, or BverfG) has published a list of cases to be decided in 2020. The constitutional complaint relating to the UPC Agreement (referenced 2 BvR 739/17) has been assigned to Justice Prof. Dr. Huber. Justice Peter Huber had indicated, in an interview to Managing Intellectual Property at the end of 2019, that a decision would be upcoming in early 2020 – there have been no further update on the timing of a decision hand-down. Justice Peter Huber dismissed the suggestion that the BverfG has been waiting to see how Brexit unfolds; the judge explained that the decision had been delayed because of a backlog of other important constitutional cases.
However, the future of the UPC project now faces a number of hurdles, even putting to one side the outcome of the BverfG complaint. Mechanistically the UK was a key jurisdiction and one of the gatekeepers to commencement of the system; it was the planned home to one third of the Central Division (to hear medicines and biotech cases); and the rules of procedure have been agreed based on a unique hybridisation of civil/common law. There is much to be re-negotiated if the UPC is to continue without the UK.