LONDON – The U.K. has announced that it will continue with preparations to join the new single European patent system that is due to get off the ground next year, despite the referendum vote of June 23 to leave the EU.
The intellectual property minister Lucy Neville-Rolfe announced the decision to other member states at the EU's Competitiveness Council on Monday afternoon. However, she said, "The decision to proceed with ratification should not be seen as pre-empting the U.K.'s objectives or position in the forthcoming negotiations [over leaving] the EU."
The move is important for U.K. companies because once up and running it will be possible to get a single patent that is enforceable in 25 countries and to prevent infringements through one injunction.
That contrasts to the current position, where patents granted by the European Patent Office must be registered separately in all the countries in which they are to be enforced and infringement cases brought to national courts, which on occasion have handed down different rulings from each other.
Furthermore, London is due to be home to the section of the Unitary Patent Court (UPC) ruling over pharmaceuticals and chemicals.
It was expected that the U.K. would ratify the legislation relating to the UPC over the summer, but then the Brexit vote threw a rather large spanner into the works.
Steve Bates, CEO of the Bioindustry Association (BIA) welcomed the decision to proceed, saying that being able to protect intellectual property is vital for life science companies and is often the key value in emerging bioscience companies. However, he wants the U.K.'s right to remain part of the system after Brexit cemented into place now.
Joining the single patent "will provide the option for businesses to save time and money, which will be of particular benefit for SMEs, as they will be able to register their patents across the participating countries at reduced cost and enforce them through a centralized court system rather than multiple local courts," Bates said.
In addition, locating the central division of the court with responsibility for life sciences cases in London will reinforce the U.K.'s position as a primary destination for investment. "The involvement of the U.K. judiciary with their significant expertise will also be a major advantage to the new system," said Bates.
The BIA has long supported the U.K. being part of the single patent, but, said Bates, the question of whether to ratify following the Brexit vote is a difficult one to balance with the complexities of what would happen should the U.K. have to withdraw from the system once it leaves the EU.
"While the desire to see rapid entry into force of the new system is understandable, it is now imperative that the government works swiftly with the other signatories to the agreement to ensure the U.K. can remain part of the UPC after it leaves the EU and avoid these complexities arising," said Bates.
If this cannot be achieved, appropriate transitional provisions will be needed.
The U.K. government has found the wiggle room to go ahead with ratification because – unlike the EMA – the UPC is not an EU agency.
That is because of an earlier row, when Spain declined to join because Spanish is not one of the official languages to be used by the single patent system. In the event, 25 of the EU's member states are due to take part.
In addition, patents will continue to be granted by European Patent Office in Munich, Germany, which also is a non-EU body.
But while the UPC is independent of the EU, it will be subject to EU "acquis," the body of common rights and obligations that is binding on all member states. That includes the case law of the Court of Justice of European Union, a body that attracts particular venom from Brexiteers, who see it as a slur on U.K. sovereignty.
Given this, there is likely to be resistance to the U.K. remaining within the patent court system, even if it is fully up and running with U.K. participation next year.
There also is the possibility that the process of bringing the UPC to life will be slowed down if the U.K. asks for some guarantee that it will be able to remain within the system after leaving the EU.