This Kat posted last week about the current progress of ratification of the UPC Agreement, and with it the likely timetable of the coming into operation of the Unified Patent Court and the Unitary Patent; and fellow Kat Annsley also reported an update received from the UPC taskforce of the UK IPO.
A number of commentators have noted an apparent inconsistency between on the one hand the UK after Brexit being a member of the UPC Agreement when the UPC is required to apply EU law and make references to the CJEU, and the Government’s white paper “Legislating for the United Kingdom’s withdrawal from the European Union” which states:
“The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK. Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation.”
Surely then, it is argued, the UK cannot remain a member of a court system in which the CJEU has jurisdiction. This position is advanced in this article by authors from Dechert LLP and was also the subject of a Twitter discussion between this Kat and Tufty the Cat.
Well, this Kat does not think so, and the key in the passage quoted is “in the UK”. The issue is that currently domestic courts are required to follow CJEU jurisprudence, and after Brexit they will no longer be so bound. But the UPC is not a domestic court. It is an international court. It is not in any jurisdictional sense “in the UK”. Therefore, this Kat considers that this policy statement is simply irrelevant to the matter of the UPC.
The UK has not said that it will not be part of any international court or tribunal in the future. What it has said is that domestic courts should not be bound by the CJEU. If the UK has no issue with being part of an international patent litigation court (which involves entirely ceding jurisdiction to that court in the case of patents litigated there) it is comparatively a minor issue what sources of law that court will recognise or be bound by – the main issue is that a court that is not under exclusive UK control will have competence. There is no reason why Brexit should change that, and this Kat does not see any real incompatibility between the UK’s policy on the judicial independence from the CJEU of its domestic courts, and continued membership of an international court system where CJEU decisions will be binding.
The other point is that national patent law will be unaffected, and no patentee is required to use the UPC, or seek a unitary patent. Despite this Kat’s view that Article 2(2) of the European Patent Convention admits no divergence in law between national patents and European patents, the UK implementation of the UPC Agreement will allow national patent law to develop in a manner different from that of the UPC. So if a patentee wants a UK patent litigated only in a UK court subject only to the UK Supreme Court, then all they need do is apply for one.
In reality, it seems to this Kat no different in principle ceding to the UPC (with its CJEU oversight) jurisdiction over infringement of European patents including in respect of the UK, to ceding to the European Patent Office jurisdiction over the granting of European patents including in respect of the UK. If the EPO Boards of Appeal decide to reject a European patent application or revoke a European patent, then that decision is final and no UK court can get it back for you. In both cases, the matter is outside the remit of UK tribunals.
How numerous are likely to be CJEU referrals by the UPC anyway? As far as this Kat can see, they are likely to be neither less nor more numerous than by national courts currently. Which means – for patents, not very many, for supplementary protection certificates, rather more. So far patents at least, this Kat expects the CJEU involvement to be rather limited.
Only time will tell, and the UK has committed so far only to ratifying the UPC Agreement, not to remaining in the system after Brexit. But the UK Government seems to regard both options as open – the original announcement that the UK would ratify stated “But the decision to proceed with ratification should not be seen as pre-empting the UK's objectives or position in the forthcoming negotiations with the EU”. Indeed to this Kat both outcomes are conceivable – neither is impossible in principle.