27 January 2017
Reporter: Mark Dugdale

UPC ratification document doesn’t mention CJEU

The UK Conservative government appears to be avoiding any mention of the Court of Justice of the EU’s (CJEU) role in the upcoming Unified Patent Court (UPC).

An explanatory memorandum to the protocol on privileges and immunities of the UPC was submitted by UK IP minister Jo Johnson to accompany a 20 January command paper to British Parliament ahead of ratification.

It expressly said the “EU is not a signatory” to the agreement that creates the new patent court, while adding: “The UPC forms a separate jurisdiction to the national court systems and it will not be part of the UK court system.”

“The UPC Agreement establishes a specialised non-EU patent court under international law with jurisdiction for disputes relating to European patents in 25 European countries. The agreement is between 25 EU countries (not Spain, Croatia or Poland), the EU is not a signatory.”

But as one lawyer recently pointed out in a recent article on the future of the unitary patent system: “The UPC recognises the ultimate supremacy of EU law as decided by the CJEU. It remains to be seen whether the UK will continue as part of the unitary patent system once it leaves the EU.”

The CJEU’s supremacy over UK law has been a major campaign issue for anti-EU campaigners for years. The UK government’s reluctance to mention the CJEU in UPC documents could stem from the country’s vote leave the EU in June last year.

Since the Brexit vote, the incumbent Conservative government has been under significant pressure to reveal its negotiating position ahead of triggering Article 50 and beginning the two-year exit process that it mandates.

The government lost a significant court case earlier this week, with the UK Supreme Court ruling that Article 50 could not be triggered without Parliament’s permission. This put its self-imposed deadline of March for formally announcing the country’s withdrawal from the EU in serious doubt.

Earlier in January, the UPC preparatory committee said it expects the unitary patent system to become operational in December. It is working under the assumption that the provisional application phase will begin at the end of spring 2017, meaning that the projected timeline for the UPC Agreement to enter into force will be at the end of this year.

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