Today, the United Kingdom has formally withdrawn from the Unified Patent Court (UPC) system. Owing to the UK’s withdrawal from the system (as a consequence of Brexit) and a successful constitutional challenge in Germany to Germany’s proposed ratification of the UPC agreement, the UPC has yet to come into being.
Months after announcing that the UK would not participate in the UPC, owing to the UPC applying EU law and being bound by the CJEU, the UK has written to the Council Secretariat of the UPC to withdraw the UK’s ratification of the UPC agreement. A corresponding statement has also been made in the House of Commons.
The UK’s previous ratification of the UPC agreement was made in 2018, despite preparations for Brexit. However, following Boris Johnson taking over as Prime Minister from Theresa May and the general election in December 2019, the UK government issued a paper for the negotiations with the EU relating to the UK’s withdrawal from the EU, stating that the UK would not accept any form of oversight from the CJEU or other EU bodies.
This then precipitated the UK Intellectual Property Office to confirm, in February 2020, that the UK would not be participating in the UPC, even though the UPC was designed to minimise the involvement of the CJEU. Today’s statement merely formalises the previous announcement.
It remains to be seen whether and how the UPC may still proceed, to account for the UK’s withdrawal and to address Germany’s constitutional decision. If the UPC does proceed, it is likely to be a number of years before it comes into being.
It is important to note, if the UPC system does proceed, that European Patent Attorneys from all member states of the European Patent Convention, including the UK, will be able to participate.