The writing was on the wall. Despite warm words from the UPC Preparatory Committee and the European Parliament, it seems that the status of the UK's participation in the Unitary Patent and Unified Patent Court system has progressed (regressed?) from "in significant doubt" to "not on your nelly".
For those who perhaps looked at the UK's continued membership of the UPC system as a small, symbolic consolation in the swamp of Brexit, the dream seems to be over. In truth, the direction of travel has been clear for a long time: even under the May administration, and especially under the Johnson administration, the UK Government has taken an increasingly uncompromising line regarding the jurisdiction of the CJEU after the Brexit transition period. Paragraph 5 of the UK's negotiating objectives, published today, continues this trend:
"It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU's, or for the EU's institutions, including the Court of Justice, to have any jurisdiction in the UK."
And, like that, it's gone. However one interprets Opinion 1/09 of the CJEU, it is pretty clear that the UPC Agreement requires UPC participating states to respect the primary of EU law (Articles 20/24) and the overarching jurisdiction of the CJEU (Article 33) in relation to the UPC system. And, consequently, the UK Government has briefed that it will not seek to remain a part of the UPC system (although we do not expect a formal announcement).
Subject only to a radical policy rethink in the coming months (which seems highly unlikely), sadly, the UK seems to have got off the UPC bus.
For those who perhaps looked at the UK's continued membership of the UPC system as a small, symbolic consolation in the swamp of Brexit, the dream seems to be over. In truth, the direction of travel has been clear for a long time: even under the May administration, and especially under the Johnson administration, the UK Government has taken an increasingly uncompromising line regarding the jurisdiction of the CJEU after the Brexit transition period. Paragraph 5 of the UK's negotiating objectives, published today, continues this trend:
"It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU's, or for the EU's institutions, including the Court of Justice, to have any jurisdiction in the UK."
And, like that, it's gone. However one interprets Opinion 1/09 of the CJEU, it is pretty clear that the UPC Agreement requires UPC participating states to respect the primary of EU law (Articles 20/24) and the overarching jurisdiction of the CJEU (Article 33) in relation to the UPC system. And, consequently, the UK Government has briefed that it will not seek to remain a part of the UPC system (although we do not expect a formal announcement).
Subject only to a radical policy rethink in the coming months (which seems highly unlikely), sadly, the UK seems to have got off the UPC bus.
Brexit metaphor #2
Breaking news: UK will not participate in UPC system
Reviewed by Alex Woolgar
on
Thursday, February 27, 2020
Rating:
Reviewed by Alex Woolgar
on
Thursday, February 27, 2020
Rating:
Follow the IPKat on LinkedIn 
![[Guest post] Thou shalt not discriminate the Lego block over any other kind of product – GRUR speaks out on C-211/24](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgWJYQUJNvYydrZcjwSHPuxd14xX3_48aBusHKBogY-Wg1BPSJSABbFFjmGiUV3aqG2npP9xYaIl1vtWK5AsqGOQPgRD2TWFLhyyc4xGm1fHDD-tt9kHcrSSgAyju2P9wSKz0VW6h7D5MD4Hxd9vREyxKYzlMRNXxxtxc3DiNsXppfVaxgSxAMV/s72-c/21742619125_7c9e53cd39_o.png)
![[Guest post] Comparison of wine and gin: the EUIPO’s unquestionable Similarity Tool](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiNfTEBXiPVS0XjZi4mNE1OtXLxXiEp1PUgcUK7MMMXlfyTkO5SMXv-VCMXXNdS_F1XdMMxYca1VbBTGvvDeTVpo5x-5YwR7atQJmK3x32T8LACpf4308kht3nEtaxPwEPcGGrB0s5xjGktmQPOiVwPVLRO5JbW19qupc7xUtiVutvaWHow0OpBkA/s72-c/Picture%201.jpg)
![[Guest post] Muddying the waters of copyright – a rapid reaction to today’s IPEC decision which sees the sinking of the WaterRower’s claims for copyright protection](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7chFANC7ppmZl4_nlR6_hZEcg6cOhVEJNVXqki4p82BoVlcLFotuOXzHWYD5lKLiiK_kRoWeXmJjjaV2DpoKsAWq8U3LFioO5W_841a9gcfDIFjvZWcGqfnr0jWJNtyXptIYR_8bxCssaDkJ9KMokuSqy1g65Il7p2hPwo4MfRCEGoUPQJesvbg/s72-w400-c-h189/Screenshot%202024-11-11%20at%2018.20.45.png)
Posts
The decision of the UK government does not come as surprise for those who were realistic enough to not take any utterance of the proponents of the continued participation of post-Brexit UK in the UPC for anything else than wishful thinking.
ReplyDeleteWhat have Mr Pors, Mooney, Tillman and co to say now? Any twisted interpretation of Opinion C 1/09 allowing the stay of post-Brexit UK in the UPC has been shattered by the decision of the UK government.
As London is mentioned expressis verbis in the UPCA there is no other way than to open the negotiations for transferring the London section to another location.
It should be the opportunity to change the stupid decision locating the “Central Division” in three different places. The EPO being in Munich, the Central Division should logically be in Paris. But logic and politics are not really compatible.
We have not heard the end of the UPC saga, but it’s future looks bleak.
In any case it means reopening the negotiations and re ratifying the whole agreement. I therefore take bets that, should it ever come into force, it will not be before 2031 at best. The FCC can happily wait until there is a new UPCA. No need to hurry a decision in view of the situation created by the UK decision.
The irony is that the UPC has been strongly inspired by the UK procedure, and now UK will not participate!
It is now time to rethink the whole system and to come up with a better one! There are too many approximations and problems in the UPCA so that it is high time to come up with something really helping European industry and European SMES and not just companies, mainly extra European, having on top very deep pockets.
Where there is will there might be a way, but now we know there is no will from the side of UK.
The UPC might not be as dead as the famous parrot in Monthy Python, but pulling the plug of life maintaining statements is now a real option.
De profundis UPC. Rest in peace!
Techrights and zoobab: FINGERS OFF!!! No need to explain!
See also: https://www.iam-media.com/law-policy/uk-no-upc
ReplyDeleteIt seems there has been an explicit rejection of the UP/UPC, not just the implicit one from UK's negotiating objectives.
Final sentence of penultimate paragraph:
Delete"And, consequently, the UK Government has briefed that it will not seek to remain a part of the UPC system (although we do not expect a formal announcement)."
Talk about burying the lede!
So many millions wasted, so many thousands of hours of attorney and client time wasted..... Really a crying shame.
ReplyDeleteAt this rate we'll be lucky if we stay in the EPC. I really think the profession needs to take this more seriously, particularly when you see the EPO referred to as "The EU Patent Office" in Daily Mail stories (as they did in this story: https://www.dailymail.co.uk/sciencetech/article-7849891/Can-AI-hold-patent-new-inventions-Not-according-EU-Patent-Office.html before they corrected it).
The Brexit nightmare strikes close to home! If the UPC goes ahead without the UK, surely London's significance as a centre for patent litigation will suffer, if it does not, status quo ante bellum is probably the best we can hope for, with a slow decline in relevance more likely.
ReplyDeleteThe title "UK will not participate in UPC system" suggests that the UPC otherwise still has some sort of future despite its hard-wired UK references.
ReplyDeleteAt this point, I feel like playing the famous Monty Python Dead Parrot skit, after performing a global search-and-replace of "parrot" by "UPC".
Wannabet that the BVerfG will somehow manage wriggle out from having to take a decision on the merits of UPC related cases by declaring the matter moot?
https://www.cipa.org.uk/policy-and-news/latest-news/government-tells-cipa-it-will-not-seek-to-be-part-of-the-up-upc-system/
ReplyDeleteThis is a Link to the website of the Chartered Institute of Patent Attorneys, which lends more authority to the idea that the UK really is backing out of the UPC.
Note that it appears that the UKIPO found out basically the same way the papers did - briefing from No. 10.
DeleteLooks like the "I" part of IP is no longer relevant in UK politics. ;-)
ReplyDelete« London » is explicitly mentioned in Art.7(2) of the UPC agreement as one of the « sections » of the Unified Patent Court. If the UK does not wish be part of the UPC, the negotiations have to be reopened after which finding a new agreement would be difficult.
ReplyDeleteIf the UK - after an effective BREXIT - were allowed to stay in the UPC, this would have been a kind of « paradox ». From the beginning Switzerland indicated its desire to join the unitary patent system, but CH was denied access by the CJEU because not being a EU member State. Nevertheless, with the participation of CH (and other non-EU States) the unitary patent system would have been stronger.
Another path to follow is to amend the European Patent Convention (EPC) towards a community patent treaty. My proposal would be to have one official EPO language (English only in Art. 14 EPC), make the boards of appeal truly independent from the Office (establish trias politica in Art. 4 EPC) and add after-grant centralised court proceedings.
If the UK desires to be truly legally independent op the EU, can they live with decisions of the boards of appeal and decisions/opinions of the Enlarged Board of Appeal. Should we fear that the UK will also abandon the EPC?