UK confirms that it will not become a member of the Unitary Patent and Unified Patent Court
On 27 February 2020, the UK government unofficially announced that the UK will not participate in the Unitary Patent and Unified Patent Court system. The decision was confirmed by a spokesperson for the prime minister, who stated that "Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation".
The UK government's decision raises fresh concerns as to the future of the Unified Patent Court ("UPC"), a new international court that, should it come into existence, shall have exclusive competence on hearing disputes concerning European patents and European patents with unitary effect (subject to certain exceptions during the UPC’s transitional period).
It is currently unclear how the UK government's decision will impact the implementation of the UPC, particularly given the UK's involvement in the UPC project to date. Such involvement includes the UK (alongside Germany and France) being one of three signatories whose ratification was required for the UPC to come into force. Likewise, a central division of the UPC was to be located in London and was set to host patent disputes concentrated on the life sciences sector.
Speaking today (4 March 2020) in London, Antonio Campinos, president of the European Patent Office, described the UK government's decision as a "great pity", but dismissed any claims that the decision was a "decisive blow" to the UPC project. Whereas France and the UK ratified the agreement to establish the UPC in 2014 and 2018 respectively, an ongoing constitutional challenge in the German Federal Constitutional Court has stalled the adoption of the UPC. The German Federal Constitutional Court announced in November 2019 an intention to hand down its decision on the constitutional challenge in early 2020, but as of yet no decision has been provided.
In light of the UK government's decision, and to the extent it was not already done so, attention is now firmly drawn to the decision of the German Federal Constitutional Court with regards to the future viability of the UPC project.
