UK participation in UPC post Brexit legally possible
20 September 2016
Following the UK referendum on membership of the European Union, a number of stakeholder organisations in the UK sought advice on the legal obstacles to the UK participating in the Unified Patent Court (UPC) and unitary patent (UP) post Brexit. In the immediate period post the Referendum, a number of commentators and stakeholders had been calling for the UK to ratify the UPC Agreement in any event, while it still remained a member of the EU. Other stakeholders expressed considerable concern at that approach, bearing in mind the uncertainty involved in taking that approach.
CIPA, IPLA and IP Federation
As part of the process of exploring the possible continued participation of the UK in the UP & UPC project, barristers Richard Gordon QC and Tom Pascoe, experts in Constitutional and EU law, were instructed to advise on the issue by the Chartered Institute of Patent Attorneys, the Intellectual Property Lawyers Association (IPLA) and the IP Federation.
Their opinion was provided on 12 September, and a link to that opinion is here: http://www.cipa.org.uk/policy-and-news/latest-news/legal-opinion-on-the-uks-participation-in-the-upc-after-brexit.
The opinion states that it is legally and constitutionally possible for the UK to participate in the UPC and UP post Brexit although it notes that a number of steps would be necessary to achieve this, including a new agreement between the UK and the participating EU member states and amendments to the UPC Agreement. It also notes that there will be political issues to address, which could be significant.
We understand that the opinion has been presented to the UK Government for their consideration. As soon as we hear any more news on this, we will report it.