UK formally withdraws from the UPC

In a statement to Parliament on 20 July 2020, the government formally confirmed the UK’s withdrawal from the Unified Patent Court project.

The Unified Patent Court (UPC) is intended to provide, for the participating countries, a centralised forum for the litigation of European patents, including new Unitary European Patent, which will be a single, indivisible, right with ‘unitary effect’ across all participating countries.

The UK ratified the UPC Agreement in April 2018, despite the UK having voted to leave the European Union, and initial indications were that it would try and remain part of the project. However, earlier this year the government indicated that it would not seek to participate in the unitary patent system, since participation in a court which is subject to EU law is incompatible with their stated aim of independence from the jurisdiction of the CJEU, post-Brexit. This has now been formally confirmed by the statement in Parliament:

“Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court.

In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation.”

While not a surprise, this formal confirmation will be disappointing for those hoping for the success of the UPC project, since the withdrawal of the UK (an important jurisdiction for patent litigation) arguably makes the system less attractive to users. Also, without the UK, the original agreement can no longer proceed as it stands, because London is expressly written into the agreement as a location for one of the Central Division courts. 

In addition to the uncertain effects of Brexit, another hurdle was encountered when the German Constitutional Court ruled in March 2020 that the legislation passed to enable the ratification process in Germany was unconstitutional. This delayed ratification of the UPC agreement by Germany, which is now the final step needed for the system to come into force. The German government has however expressed a desire to press ahead with ratification and has been consulting on a new draft bill which will allow it to proceed.

The UPC Preparatory Committee is expected to make an announcement in the next few days concerning the effects of the UK withdrawal.

The link to the full UK withdrawal statement can be found here.

It is important to note that, irrespective of its withdrawal from the UPC (and from the EU) the UK remains a member of the European Patent Convention (EPC) which is an independent organisation. European patents granted by the European Patent Office will continue to cover the United Kingdom.