Friday, 3 July 2015

What happens to the UPC if the UK leaves the EU?

From the most recent Rouse newsletter comes some highly pertinent information and some thoughtful comment on a question that this blogger is frequently asked:
What will happen to the UPC [that's the Unified Patent Court] if the UK leaves the EU?

Will the planned referendum on the UK's continued membership of the EU delay the opening of the UPC? It appears the UK Intellectual Property Office has had this question in mind, since after months of speculation, it released the following statement to the IPKat blog, last week:
"The Government is committed to this project and wants the UK to be part of a European patent system that supports growth and fosters innovation. The Prime Minister was personally involved in the negotiations on the Unitary Patent regulations [so you know who to blame or bless, depending on your point of view] and the UPC Agreement and the UK is taking an active role in the current work to implement the new system.

There is still work to be done before the UK can ratify the Agreement, and I am committed to pressing ahead with this. It is the Government’s intention for our domestic preparations to be completed by Spring 2016".
Questions remain as to how much money the UK government will be prepared to invest in setting up the UK Divisions of the UPC before the planned referendum. The statement is notably silent on when the Government intends to ratify the UPC Agreement. Even if it is proposing to ratify in 2016, will it want to secure a venue, administrative staff and IT system for the UK Divisions of the Court before this date, or is it likely to defer this investment? Indeed, might it delay ratification itself until after the 2017 referendum leading to inevitable delay to the UPC? [this blogger assumes that a delay until after the referendum is the course of action that is both easiest to implement and simplest to justify, given the uncertainties and the need to avoid incurring wasted expense]

If the UK votes to leave the EU, it must also leave the UPC and UP although there is nothing to stop the new system continuing without the UK. However, it may well be less attractive to patentees and litigants if the UK is excluded. We would also expect the London branch of the Central Division to be moved elsewhere -- possibly to the Netherlands which is the fourth biggest patent filing country in the EU. However, regardless of the UK's participation, the new system will still offer costs savings for patent protection and litigation covering a territory that is home to hundreds of millions of consumers.


Meldrew said...

Netherlands is not the fourth biggest patent filing country in the EU: Italy is.

Meldrew said...

My apologies. Never comment late at night.

In 2014 the order of EU patent filings [direct EP plus Euro-PCT entering regional phase] was:-


So if number of applications was the guide, London should not have got a look in in divvying up the UPC.

However, I was thinking of patent validations and patents in force [germane to the likelihood of infringement (you can't infringe where there is no validation)]. On this basis Germany, France, UK, and Italy is the order.

Anonymous said...

This is what the EPO has to say on the latest statistics:
"Filings by country and region - Europe holds its ground

The 38 member states of the European Patent Organisation consolidated their share of 35% of the total filings at the EPO last year. Filings from Germany accounted for 11%, followed by France (5%), Switzerland and the Netherlands (3% each), the UK, Sweden and Italy (2% each). As in previous years, around two-thirds of the filings at the EPO in 2014 were from non-European countries. The US accounted for the largest share with 26%, followed by Japan (18%), China (9%) and Korea (6%)."
NL is 3rd, UK and Italy equal 4th.