UK government decides to proceed with Unified Patent Court despite Brexit

01/12/16

The UK government has confirmed that it will ratify the Unified Patent Court Agreement, which will enable the Unified Patent Court (“UPC”) to begin operating in EU Member States.

There had been doubts as to whether the government would proceed with ratification following the Brexit referendum result in June 2016. A previous CJEU decision on the legality of the Court contained passages which suggested that the UPC could only lawfully operate within EU Member States, because the Court will be required to apply EU law.

In September 2016 Richard Gordon QC and Tom Pascoe wrote an opinion, which was shared with the UK government, stating that the UK could lawfully continue to participate in the UPC after Brexit so long as it signed up to sufficient EU law safeguards, such as the supremacy of EU law and mandatory references to the CJEU.

London will host the pharmaceuticals division of the Central Division of the Court, which will hear revocation actions. There will also be Local Divisions of the Court in the UK and other Member States, which will hear infringement actions.

The government’s decision to ratify the Agreement has been widely reported upon. See for example:

• Financial Times
• Reuters
• The Telegraph
• The Law Society Gazette

The opinion of Richard Gordon QC and Tom Pascoe is available here.