UPC and unitary patent post-Brexit

The Unified Patent Court (UPC) and Unitary Patent are European Union (EU) instruments. Non-EU countries cannot take part, and so after Brexit, the UK will not be able to engage with the UPC process.

The ramifications of the UK leaving the EU go further than this however: there is a serious risk that the UPC and Unitary Patent regimes will not come into effect at all. This is because it is a condition precedent for the UPC starting its business that the three largest patenting EU member states ratify the UPC Agreement - namely, the UK, Germany, and France. The UK has not done so, and now it is going to leave the EU, it is unlikely that the government will be able to justify politically the ratification of an EU instrument. The decision to leave the EU notwithstanding, the UK will remain a member state of the EU for (likely) two years after the Article 50 declaration is made whilst the UK and the EU negotiate the exit agreement. During this time, the UPC would still need the UK’s ratification to open. Unless the UPC Agreement can be amended to remove the requirement for UK ratification, the UPC will not be able to open until the UK has ceased to be a member state, and by that time - likely two years or more down the line - the political will for the UPC may have cooled. This has happened for political reasons in many Eastern European countries in recent months, and this decline in interest will only continue once a major patenting country, the UK, is no longer going to take part.

If the UPC does not open, the Unitary Patent will not come into effect either.

Before the referendum, changes were approved and implemented into the Patents Act 1977 in preparation for the UPC. These will either be left to ossify as an irrelevance, or removed soon.