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| The AmeriKat never loves in haste, unless you happen to be a tasty little mouse... |
Lord Byron, Lothario of the Romantic movement and one of the greatest British poets. Not the figure that would naturally come to mind in a post about the Unified Patent Court, but bear with the AmeriKat. In 1819, in his most famous work, Don Juan, Lord Byron wrote:
"Now hatred is by the far the longest pleasure;It is a wonderful quote, illustrating that the speed in which decisions are made can mask, temporarily, the ultimate sorry fate for having made such a decision. As a keen observer of people, the AmeriKat has seen this in action in various guises. From the banal - watching the regret soaking down someone's face as their hastily ordered dish is placed next to their dining companion's more riveting platter - to the more serious. Then there are those who Lord Byron need never worry about where a decision, much less a hasty one, is unlikely to ever be forthcoming (you know who you are...).
Men love in haste, but they detest at leisure".
However, where on the spectrum will the UK's announcement of their intention to ratify the Unified Patent Court Agreement fall? Does it fall into the "ratify in haste, repent at leisure" camp?
As IPKat readers will be aware there has been significant discussion, albeit a lack of concrete action (as of yet), about the need to ensure that, if the UK does ratify, it can continue to participate post-Brexit. However, the UPCA is silent on the scenario where a signatory ceases to be a EU Member State and the ambiguity (or stone cold clarity, depending who you ask) of Opinion 1/09 does not help matters.
Over the past several months on the European patent law conference circuit, prior to the UK's announcement, everyone was agreed that continued UK involvement was desired. However, two factions began to emerge. One faction was cooing that UK industry need not worry, everything would be fine - the UK need just ratify. The litigators among you who have ever received an 11PM cold call from a transactional colleague asking whether you can "just approve this IP-heavy transaction, we are signing tomorrow" will have experienced the nervousness of the second faction. "If I have to sign this off, I just know that in a few years I or some other litigator will be cleaning up a mess...." Cue Lord Byron's "love in haste, detest at leisure" adage.
Against this backdrop, the question of what happens when the UK ceases being a EU Member State was subject to the commissioning of the Gordon-Pascoe opinion. That opinion suggested that for the UK to remain part of the UPC, additional agreements and amendments would be needed. A key issue concerns the power of courts of EU Member States to refer matters to the CJEU under Article 267 TFEU. The UPC, as a court common to EU MS, also has this power to refer questions to the CJEU (see Article 1 and 21 UPCA). However, if a contracting party to the UPCA ceases to be a Member of the European Union, the court is not common to EU MS - it will include a non-EU MS interloper, the UK. Does this mean that the UPC will not be able to refer questions to the CJEU contrary to the UPCA and EU law (see Article 20 UPCA)? The UPCA does not deal with this at all. Indeed, the UPCA does not even contemplate that a signatory will be a non-EU Member State. The UPCA refers to a party to the agreement as a "Contracting Member State" defined as "a Member State of the European Union party to the Agreement" (see Article 2(b) and (c) UPCA). This is not surprising given that, in 2013 when the UPCA was signed, no one had envisaged that the UK would, in the very near future, cease being a Member of the European Union.
So something further seems to be needed to ensure, with "sufficient degree of certainty" (to adopt the language of Article 62(4) UPCA), the UK's continued UPC participation post-Brexit. Without such measures, the impact on UK industry could be significant. For example, if the UK can no longer participate in the UPC, what happens to the coverage of Unitary Patents in the UK? What about pending UPC litigation or the enforcement of orders already granted by the UPC in the UK? Yet when the UK Government published its announcement at the end of November, no reference was made for the need for a transitional protocol to be prepared as part of its steps towards ratification.
Last week, the IP Federation published their response to the UK's announcement to ratify. In the statement, the IP Federation expressed the need to ensure that the "UPC functions effectively in the long term". They have importantly called on the UK and the other contracting Member States to urgently start work to ensure there is:
".... a legally secure route by which the UK can remain in the UPC after Brexit. If this work also makes it possible for other states which are not part of the EU but which are part of the European Patent Organisation to join the UPC this would be welcomed.".If, for whatever reason, the UK cannot remain part of the UPC on Brexit, then:
"[t]he UK government needs to provide assurances that any Unitary Patents will be recognised as UK national patents. The UK and other contracting states will also need to produce transitional arrangements to govern what will happen to ongoing litigation at the UPC and to ensure the continued functioning of the court.
Given that the clock is now ticking for the commencement of the UP and UPC, the IP Federation calls on both the UK and the other contracting states to commence work on the legal framework that will be needed for both of these options as soon as possible. It will be vital for the UK and other contracting states to provide opportunities for industry to provide input into the shape of this legal framework. The IP Federation looks forward to playing a constructive part in this process."The AmeriKat agrees Given that the purpose of the UPC is to "enhance legal certainty" in the enforcement of patents (see Recital 5 of the UPCA), it would seem perverse that the UK's ratification of the UPC would result in increased uncertainty for industry post-Brexit in patent law. So for those wishing for a quiet holiday period, get your sleeves rolled up and quills at the ready....
Will UK industry suffer from Government's "ratify now, repent at leisure" UPC stance?
Reviewed by Annsley Merelle Ward
on
Thursday, December 08, 2016
Rating:
Reviewed by Annsley Merelle Ward
on
Thursday, December 08, 2016
Rating:
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Ah, but is the Government's stance "ratify now, repent at leisure"? It's statement simply offers "continued progress towards ratification". I fear that industry has probably seen through that smokescreen already.
ReplyDeleteThe opinion of Counsel obtained by IP Federation and CIPA, appeared to make departure from the UP and UPC a low probability outcome, but politics makes fools of us all, and it would be well to consider (at least in outline) what might be required to provide an appropriate degree of legal certainty to users.
ReplyDeleteDeparture of UP but not UPC
What was previously called the Italian option would be re-labelled the British option.
In this event it would be necessary to ensure continuing effect in the UK of UP patents. There are various models for this, but the simplest would require that as from departure from the UP, the patent would be deemed to be a European patent (UK). Payment of the next UK renewal fee (on a UP where all previous renewal fees had been paid) would be all that was necessary to ensure continued effect.
As the UPC would continue to have jurisdiction over European patents (UK), transitional provisions for ongoing litigation would be minimal (if required at all).
Departure of UP and UPC
The same transitional arrangements as indicated above would be necessary for the UP.
In addition, transitional provisions would have to ensure that decisions of the UPC having final effect were honoured post-departure, and (for minimum disruption) that litigation already commenced in the UPC (including any related counterclaims filed after departure) could continue there, and that the result would be honoured in the UK.
Position with remaining UP/UPC members
It is of course necessary to consider what might happen in the rest of Europe. Departure of the UK would not affect the legal validity of the UP or the UPC, just their territorial scope, but the hardwiring of the UK into the UPC would need to be disentangled. This is a political matter, not a commercial risk to users.
Risk of unsatisfactory transitional provisions
Those of a nervous disposition will point to current political turmoil and ask for guarantees that any departure will be harmless to them. There is no such thing as a guarantee in politics: however if the UK did not provide suitable transitional arrangements on departure, it will have ceased to be the sort of place where people wish to do business. The chance of there being no satisfactory transitional arrangements are extremely low, verging on negligible, because control of transitional arrangements will be entirely in the UK's hands the rest of Europe need only say, "sod-off and good riddance".
So, now even non-EU member states might join or be part of an EU group (which doesn't include all of the EU member states) and be ultimately under the control of the CJEU which has no jurisdiction over them? Oh what a tangled web...
ReplyDeleteMight it not be simpler for the UK to join, if necessary, and for the UPCA not to accept UK filings subject to Art 50 triggering? No confusion for applicants/patent EE's. The EPO is still available. And it leaves time to formulate a proper reworking, if necessary.
The London court may start but won't be needed immediately for substantial matters (procedural appeals can be dealt with elsewhere) so a decision on that can also be delayed and properly taken.
Why the rush??
Although G 1/09 is not saying much as far as UPCA is concerned, the EuCJ made clear that it did not agree to EPLA. Having the UK or other non EU member states, but member states of the EPO participating in the UPC is nothing more than revival of EPLA through another channel.
ReplyDeleteReferral of prejudicial questions to the EuCJ is a key part of the UPCA. Any of those thinking that the UK can participate without accepting this and the supremacy of EU law in patent matters, are either naive or put their heads in the sand.
How can judgements of the UPC be enforced in the UK if the UK is not member state of the EU?
It is for good reasons that UK industry wants clarity in those matters. Nothing more fatal for investors than lack of a clear perspective. IP industry is worried about its own money, and not about the possible loss of gains for some law firms.
All those questions are highly political and considering those as minor technical issues which could be dealt with with by the administrative committee of the UPC is just plainly at odds with common sense. The Gordon-Pascoe opinion made clear that all the questions raised can be legally solved, but they have all a political impact.
The EU negotiator has made clear that cherry picking is not what the Brexit negotiations will lead to. Wanting to stay in the UPC without being member of the EU is just another form of cherry picking.
it is only once the protocol on immunities will have been signed and gone through Parliament that I will believe UK is making serious "preparations for the ratification".
"a legally secure route by which the UK can remain in the UPC after Brexit"
ReplyDeleteBut where does this sit with the principle of no negotiation without notification, as continually emphasised by Juncker, Tusk et al.
If Tusk and May can't get a pre-agreement on existing rights of EU nationals in the UK, which would appear simply to formalise the position under the Treaty of Vienna, what hope a rewrite of the UPC? Is this not "cherry picking" of the sort that is not to be allowed for Britain? Is tis not having cake and eating it?
I see the UK announcement as saying something without saying more than needed. Continuing with preparations for ratification can equally mean sitting on its hands.
No need to rewrite the UPA and the UPC. Just add a one line protocol: For the purposes of these agreements, the UK is deemed to be an EU member state and agrees for these purposes to be bound by the CJ. It's not cherry picking. The boot is on the other foot, the rest need the UK to do something or the whole thing flounders. In fact this could be a bargaining chip in the Brexit negotiations.
ReplyDeleteI have heard what I believe are well-informed rumours that the UK is quite serious in proceeding with ratification.
ReplyDeleteIf those rumours are indeed true, then this is quite astonishing. I mean, has anyone yet figured out how the UK can acknowledge the supremacy of EU law (and submit to the jurisdiction of the CJEU) solely in connection with patent or SPC disputes?
Take competition law as an example (on the grounds that it is specifically mentioned in the Gordon and Pascoe opinion). Does the UK only need to respect EU competition law after the fact (ie after a competition law matter has arisen in connection with a patent dispute and has become relevant to enforcement of a UPC judgement)? Or does it need to continue to respect EU competition law in all matters, regardless of the existence (or otherwise) of an IP dispute? I strongly suspect the latter.
Given the politically explosive nature of what staying in the UPC might require the UK to sign up to, this should all be clarified before the UK ratifies. To do otherwise would just be plain reckless.
Sadly, it looks like recklessness is the order of the day. You only need consider that the Participating Member States that have already ratified the UPCA have done little (if anything) to align national laws on infringement to the law as specified in the Agreement. The (respectively approved and proposed) amendments of UK and German patent laws also fail to deal with this issue adequately. This will leave patentees and third parties guessing as to which law will be used to assess (non-)infringement... and makes it highly likely that the applicable law will vary depending upon the choice of forum (UPC vs. national court).
What a mess!
If UK wants to kill the UPC, then the best is to ratify before any Brexit negotiations are opened.
ReplyDeleteNo sensible patent owner will then decide for a UP not knowing what the fate of its patent will be later once UK leaves the EU. In the absence of clear transitional provisions, it would be foolish to go ahead. The transitional period of 7+7 years might need to be expanded.
@Anonymous of 11.17:
One line protocol, may be, but it has to be agreed by all participating countries. An apparent simple solution, but not practical in the slightest.
UK's attitude remains cherry picking whether you like it or not.
That a UPC without UK is less interesting is sure, but not everything in Europe has to revolve around UK.
I can only agree that we are going straight into a mess!
@proof of the pudding
ReplyDelete"Or does it need to continue to respect EU competition law in all matters, regardless of the existence (or otherwise) of an IP dispute? I strongly suspect the latter."
No- it will simply be accept EU law in relation to any tangential affects on decisions of the UPC. For example EU competition law could theoretically affect the form of an injunction granted for a FRAND patent or that favours a dominant position. Given that referrals to the CJEU for patent cases have always been rare (almost non-existent outside of life sciences), the issue of EU law supremacy will have very little impact in practice.
" if a contracting party to the UPCA ceases to be a Member of the European Union, the court is not common to EU MS"
ReplyDeleteI can't follow what definition of "common to" is being used here. How would you cease to have something in common with someone by virtue of now also have it in common with a new person?
"it will simply be to accept EU law in relation to any tangential effects on decisions of the UPC"
ReplyDeleteHmmmn.
How will that work if application of UK law on the relevant (competition or other EU law) issue would lead to a different conclusion? Even if a way is found of "fudging" this for decisions of the UPC, could the UK then be reasonably characterised as accepting the supremacy of EU law?
And remember that the UPCA will also be relevant to national courts (for some issues, including all issues for not opted-out EPs). Will the UK High Court really apply different standards (EU law vs. UK law), depending upon the opt-out status of the patent? How will UK national patents be treated (especially in view of the UK's obligations under Article 64 EPC)?
Sounds like the kind of issue that the CJEU might have a strong view upon. Also, given the horrendous complexities involved, I really do not think that it is sensible to be complacent about this until everything has been worked out in fine detail.
"Will the UK High Court really apply different standards (EU law vs. UK law), depending upon the opt-out status of the patent?"
ReplyDeletePresumably, if the patent is opted out, the UK court will apply UK law. And if it is opted in, the UPC will apply EU law.
This might be a reason for a patent proprietor to indulge in opt-in/opt-out forum shopping. But forum shopping was already going to be inherent in the opt-in/opt-out decision, even before we voted to leave the EU.
Bear in mind that outside life sciences these will mostly be tangential issues, as someone has already said. The structure of the UPCA was deliberately crafted so that most of patent law wouldn't become a matter of EU law that would need to be referred to the CJEU.
Life sciences issues will arise in the London central division of the UPC, as they would in Milan or The Hague if the UPC went ahead without us. But they will arise much less in the UK local divisions.
"How will UK national patents be treated (especially in view of the UK's obligations under Article 64 EPC)?"
A good question, but not a new one. This is an issue which arose before our vote to leave the EU. It stemmed from the fact that the UK (and other countries) have chosen not to align their laws for national patents with the UPCA.
Where the issues are tangential, e.g. competition law, then I don't think Article 64 EPC comes into it.
"Where the issues are tangential, e.g. competition law, then I don't think Article 64 EPC comes into it".
ReplyDeleteHmmmn.
Question: can a first patent "confer the same rights" as a second patent if a single court reaches conclusions for the first patent (eg concerning (non-)infringement, or remedies for infringement) that differ from their conclusions for the (otherwise identical) second patent?
Perhaps this is perfectly fine, but it certainly does at least look like a prima facie contravention of Article 64(1) EPC... and so certainly worth considering in greater detail before the UK proceeds with ratification.
"Bear in mind that outside life sciences these will mostly be tangential issues, as someone has already said. The structure of the UPCA was deliberately crafted so that most of patent law wouldn't become a matter of EU law that would need to be referred to the CJEU".
So I guess it's just an annoying inconvenience that EU law is absolutely central to quite a few important issues for "patent" disputes in the pharma and life sciences fields (eg due to the Biotech Directive, Dir. 2004/27 and Regs. 1610/96 and 469/2009, plus connected provisions such as Regs. 141/2000 and 1901/2006)?
With the best will in the world, it won't be possible for the UPC to pretend either that those EU rules don't exist or that they are irrelevant to decisions of the Court. Therefore, if the UPC is going to issue decisions based upon those EU laws, ought not the UK ensure that it remains fully compliant with those laws (and any new EU laws that may impinge upon patent or SPC matters)?
In the absence of full compliance upon the part of the UK, I foresee serious problems, eg with enforcement of UPC decisions in the UK, inconsistencies between UPC and UK court decisions (potentially in connection with the same patent)... and also non-compliance of the UPP as amended with EU law.
The UK has said that it will ratify "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".
ReplyDeleteThe attempt by some to gain guarantees now of what might happen in the event of withdrawal (or expulsion) from the UPC:-
a) Pre-empts the UK’s objectives or position in the forthcoming negotiations with the EU. As the UK is keeping its "plan" secret, and as the remaining EU states have said no negotiation before withdrawal, any "guarantees" now would not be worth the paper they were written on.;
b) Ignores that all control (in the limited matter of transitional arrangements) is with the UK;
c) Assumes the worst outcome;
d) Argues that users need confidence in what will happen on withdrawal at a time when 20 days is a long term perspective;
e) Suggests without any form of evidence that users will not adopt the UPC/UP for fear of the unknown;
f) Ignores the political will to get this done; and
g) May for some be a disingenuous attempt to lob spanners in works by casting doubt not just in the UK, but the rest of Europe.
I know we are in a post-truth era, but suggesting "doubts" and "concerns" and "serious problems" without assuming a political will to solve such problems is the sort of truth manipulation that got us into this mess. Fear-mongering is double-plus-ungood. There are some who profit by cost and complexity. Let us not permit them to control the debate with insinuation and (at best) half-truths.
So:-
- let the Government ratify;
- see whether Germany does;
- see whether the UPC and UP get used;
- see whether the UK needs to leave;
- and if it does need to leave - then write transitional provisions that preserve rights (as would be entirely in the hands of the UK Government).
There is no need to draft detailed provisions now, at a time when the political shape of a withdrawal is completely unknown.
"everyone was agreed"
ReplyDeleteWell within the patent establishment yes, outside nobody asked.
This is a minor issue in the grand scheme of things, but I've not seen anyone else mention it.
ReplyDeletePrior national rights affect the validity of a UP patent. If there is a UP patent covering the UK but the UK leaves the UP, as Meldrew above suggests one obvious thing to do is to go forward with a UP patent that no longer covers the UK, and a separate EP(UK) patent. However, both will have less prior art than the original UP patent: UK rights won't be prior national rights for the new UP patent, and only UK rights be prior national rights for the EP(UK).
Obviously this could be dealt with in various different ways, but it's another thing that makes the thought of being in then leaving the UP/UPC system a less than pleasant prospect.
@Garfield
ReplyDeleteOne more thing. You seem to assume that a single patent will only ever be litigated at either a national court (e.g. the UK High Court) or at the UPC. But this may well not be true during the transitional period.
Let me explain my thinking on this.
Rule 5(7) of the Rules of Procedure for the UPC means that, if an action for a not opted-out EP (NOOEP) is brought before the UPC, it is not possible to opt that patent out later on.
However, there is nothing to stop NOOEPs being litigated before national courts. Article 83(1) UPCA is unconditional in this respect. And Article 83(3) UPCA only prevents the opting out of patents that have been litigated before the UPC. It does not prevent national courts retaining shared jurisdiction (with the UPC) over NOOEPs during the transitional period.
Thus, at least during the transitional period, numerous (and serious) problems would arise if the UPC and the UK High Court were to apply different laws (to the same patents).
Here's an example of the kind of pickle that we could get into: the cooperation of the UK courts is going to be required for the enforcement of judgements of the UPC. But if the UK courts apply different laws to the UPC (and could hence arrive at different conclusions), this could lead to enforcement in the UK being challenged on the grounds that the order of the UPC is inconsistent with UK law.
Do you get the point? Or am I missing something here?
And another thing. I quote from CJEU Opinion 1/09:
ReplyDelete"In that context, it is for the national courts and tribunals and for the Court of Justice to ensure the full application of European Union law in all Member States and to ensure judicial protection of an individual’s rights under that law".
Under the UK's dualist constitution, how would merely ratifying the UPCA (and presumably also a post-Brexit a protocol thereto) deal with this requirement? Surely amendment of UK legislation would be required.
@Meldrew
ReplyDelete"There is no need to draft detailed provisions now, at a time when the political shape of a withdrawal is completely unknown".
Perhaps so. But ought we not convince ourselves that there would at least be one sensible way in which the system could be made to work post-Brexit? Right now, I am far from convinced that there is such a way.
In this context, outlining well-founded concerns for the stability of the UPC system (and potential disbenefits for its users) is most certainly not "fear-mongering". It is merely akin to commenting that a butt-naked Emperor indeed has no clothes.
I am not going to repeat what is said above and in other comments which is essentially that this is a messy web of uncertainty.
ReplyDeleteI just pose one question -
Assuming that the UK does ratify in a few month's time, will Germany follow and do the same? Will the sensible Germans not be put off by uncertainty? What is the German IP owners association saying? I suspect that their Government will be determined to get this right. In fact if the UK ratifies, maybe we should be relieved that the UPC's fate has been placed in the hands of an adult party.
@Proof of the pudding
ReplyDelete"But ought we not convince ourselves that there would at least be one sensible way in which the system could be made to work post-Brexit?"
Well it would work perfectly well without the UK. Is that sensible?
If we leave entirely the UPC would still be of benefit to UK industry - just less benefit.
WIPR Survey:Readers don't like the UK decision on UPC agreement:
ReplyDeleteAnswering our latest survey, on whether readers welcomed the decision, 63% did not, while 37% felt positive about the news.
@Meldrew
ReplyDeleteDoes that mean that the UK is still taking the "Yes, Minister" approach? That is, are we going in just to make sure that we make the whole thing unworkable?
@Proof of the pudding
ReplyDeleteNo, the "West Wing" approach. Trying to do the right thing in the face of vested (and vocal) interests.
@Meldrew
ReplyDeleteBe careful. I think that you are in grave danger in losing all sense of objectivity about this.
I appreciate your enthusiasm for the UPC project. Indeed, I am of the view that it would be a real boon if Europe gained a truly functional "unitary" patent / court project. Thus, I am not opposed to the concept. I just have serious (and, may I point out, well justified) concerns about this version of such a project.
Frankly, it is absurd to suggest that it is only "vested interests" who do not believe that it would be a good idea to proceed with the UPC at this stage... particularly when the "no" crowd include the IP Federation and 63% of respondents to WIPR's survey.
Believe me, I understand your frustration... being so close to achieving a long-desired goal, only to get others questioning whether we really should take the final (seemingly small) step. However, pressing ahead with a system that has fatal flaws is never a good idea... especially if you are relying upon politicians to fix those flaws 'on the fly'.
@Proof of the pudding
ReplyDeleteI fully agree with you and I believe that a lot of our colleagues share exactly the same opinion.
@proof of the pudding
ReplyDeleteThe pursuit of the perfect will often delay the implementation of the merely better.
The UPC and the UP are not the best system we could have, but they are considerably better than what we do have.
My "enthusiasm" is not that of the uncritical zealot (far from it ), but that of one who has been persuaded by extensive discussion with users that an improvement now is worth more than paradise "sometime"; and that practical politics made ratification the only sane choice
The EPC was not greeted with a chorus of joy when it came, and many railed against its "defects" (and it is still not free of defect): however, few now want to go back to filing national patents, save those who tremble at the thought of the UPC.
It is a small paradox that some of those most involved in innovation are so reluctant to innovate. But of course most innovations fail, often because of people saying "it cannot work".
@Meldrew
ReplyDeleteLet's just agree to differ. I can concede that it can be perfectly pragmatic and sensible to accept a sub-optimal solution. However, where I think that our views diverge is on the question of just how bad things have to get before you say "no".
Even before the result of the Brexit referendum, the UPP was widely acknowledged to be a "sub-sub-optimal compromise". In my view, the additional (huge) levels of uncertainty introduced by the UK's departure from the EU really tips the balance over from "compromise" to "unworkable".
Comparisons with the EPC are not helpful here. That was a new system for granting patents that ran in parallel with existing systems. Although it required an alignment of national laws, at no point was there any doubt as to:
- whether a granted patent will have (direct or indirect) effect in a designated state; or
- which law would be applied in (or in respect of) a particular designated state once the patent was granted.
The UPP will introduce enormous uncertainty on both of these points. In fact, the uncertainty is so great that even now the most well-informed legal commentators cannot agree upon the law(s) of infringement that will be applied.
In short, the UPP will generate precisely the kind of uncertainty that industry hates the most (Do I infringe or don't I? Can I stop my competitor or can't I?). Worse still, it will take many years (and a lot of client money) to resolve that uncertainty. When you add Brexit to the equation, which could even cast doubt upon the validity of the whole legal edifice, you can understand why some within industry might no longer be so keen on the UPP.
I am of the humble opinion that should the UK government indeed ratify the UPC before the actual Brexit has started, it might well be fatal for the UPC.
ReplyDeleteAny legal advisor will be a fool if he advises his client to opt in for the UPC, not knowing what the future of the UK part of the UP will be.
The number of patents opted out before Brexit has started and is complete will be huge for this reason alone.
Do you think that a good legal advisor will not find its way to the EuCJ, should his patent having been harmed, or the infringement action has not brought what he hoped for, by the local or the central division in UK once UK has left the EU? And the enforcement in UK is still unclear!
I do not dare imagine what the EuCJ would say. It did not want the EPLA, and I think that with a high probability that it will not like a UPC with UK out of the EU. At least some guarantees have to be given that EU law in IP matter, with all the accompanying aspects will be accepted by the UK. This is not only a legal problem, which might be solved, but rather a political one.
Do you think for instance that all the other member states of the UPC will pay for the lease of a building in London, if UK is out of the EU, with all the uncertainties about the future?
Ratifying, or planning to ratify is just to be seen as an attempt to have possibly a better bargaining position when the actual negotiations on Brexit will start.