The EU’s Unitary Patent Convention (see https://ladas.com/education-center/eu-unitary-patent-and-patent-court-2/) and the associated EU patent had originally been expected to come into effect in 2017. This was, however dependent on ratification of the agreement by thirteen EU countries of which three had to be France, Germany and the United Kingdom. The United Kingdom’s vote on June 23 to leave the European Union had thrown that timetable into doubt.
At a meeting of the European Competitiveness Council on November 28, 2016, Baroness Neville-Rolfe, the UK Minister of State for Intellectual Property, announced that the United Kingdom would continue with the necessary steps towards ratification of the Convention. In doing so she noted:
- As the Prime Minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.
Since the UK’s vote on June 23 there has been much speculation as to whether the UK could continue to participate in the Unitary Patent Convention even after it has left the European Union. A widely circulated opinion of barristers specializing in EU constitutional law stated that membership of the Unitary Patent Convention by a non-member of the European Union would be possible as long as that country agreed to submit to the jurisdiction of the European Court of Justice (ECJ) on matters of European Union law. Since submission to the jurisdiction of the European Court of Justice is one of the big no-no’s of those who voted for the UK’s exit from the European Union, there was a widely-held view that continued participation by the United Kingdom in the Unitary Court system after the United Kingdom leaves the European Union would be unlikely. Based on this view, a substantial part of British industry had expressed a desire to participate in the new court system, the United Kingdom should not ratify the Unitary Court Convention unless an agreement could be reached with the European Union about continued membership of the court system after the United Kingdom leaves the system. It should, however, be noted that the language of the Unitary Patent Convention reserves the final decision on matters of substantive patent law to the appellate chamber of the Unitary Patent Court and so issues in which the European Court of Justice is likely to have jurisdiction would be those in which other aspects of European Union law, for example competition law are involved and so the perceived problem of ECJ jurisdiction may be a manageable one.
It seems that the British government has taken a different view believing that it is more likely that a deal can be reached in which the United Kingdom can continue to participate in the new court system if it takes an active role in getting the system underway than if it stands to one side and tries to negotiate participation later. Based on Baroness Neville-Rolfe’s statement, it seems that there is now a real chance that the new system and its associated unitary EU patent will come into effect in 2017. Exit of the United Kingdom from the European Union is unlikely before 2019. Issues will therefore arise as to whether to use the new system, at least where protection in the United Kingdom is of importance until the actual role of the United Kingdom after 2019 becomes clearer. Nevertheless, fears that the UK’s Brexit vote might bring the whole project to naught have been allayed and work on technical aspects of the court and recruitment of judges, which had been put on hold, can now proceed.