UK Formally Withdraws Ratification of Legislation for the Unitary Patent (UP) and Unified Patent Court (UPC)

By George Tebbutt, Richard Kempner and David Brown

The UK has now formally withdrawn its ratification of legislation supporting the Unified Patent Court, as first reported yesterday in a statement made in parliament by Amanda Solloway MP, available here.

Back in March 2020, the UK government indicated its intention to no longer proceed with the proposed Unitary Patent system – of which the UPC forms an integral part. The formal withdrawal announced in parliament yesterday puts that intention into effect.

It seems inevitable that the attractiveness of a Unitary Patent (UP) will be reduced by non-participation of the UK, especially considering that many patentees only choose to validate in a limited number (e.g. 3-5) of EPC states using the conventional patent system. Non-participation by the UK also means that the UPC, if it comes into effect, will not have jurisdiction over any past and future European patent validations in the UK. This will be welcomed by those patentees who are cautious of their European patent rights falling within the jurisdiction of the new UPC, and who were planning to “opt-out” of its jurisdiction.

The Unitary Patent system was dealt a further blow earlier this year when a challenge to the compliance of the UPC with German constitutional law was successful within the German courts, albeit largely for formal reasons relating to the number of members of parliament participating in the vote.

Germany can now ratify the necessary legislation, but with UK participation now off the table and the focus of government activities lying elsewhere during the pandemic, it remains to be seen whether there will be the political will to implement the proposed system in its current form.

What does this mean for you?

The only difference this will make to you is that, if and when the UP and UPC system comes into effect, you will – as now – have to validate a European patent as a national UK right. A UP will not cover the UK and the UPC will have no jurisdiction over UK patents or UK Supplementary Protection Certificates.

Importantly, nothing changes as regards the services we provide for you. If and when the UP and UPC system comes into effect, we will be able to validate your European patents as UPs in the participating states if that is what you wish, to opt them out of the jurisdiction of the UPC if that is what you wish, and to conduct litigation for you in the UPC. These rights are not affected by the UK leaving the European Union either.

Because our European Patent Attorney, UK Solicitor and German Rechtsanwalt qualifications give us full representation rights in the European Patent Office (including the proposed new UP validation department), the UK courts, the German courts and the UPC, we will remain available to provide a complete IP service to you, taking advantage of the new opportunities.

In terms of litigation, as the UK is no longer taking part in the UP and UPC system, it will not be possible to litigate UPs here, and European patents validated in the UK will only be enforceable via the UK courts. Many patentees are planning to opt out of the UPC system in any case, given the inevitable uncertainty surrounding the UPC – its untested judges, lack of precedent to follow, and the risk of fighting and losing a pan-European judgement. The speed of the English courts, the predictability of English Patents Court and IPEC decisions and the high regard in which they are held around the world, will mean the UK will continue to be an important country for patent litigation, perhaps even more so in the light of the above.