The Impact of Brexit on Unitary Patent Protection and its Court

Abstract

Among the many problems Brexit raises in the field of European intellectual property those relating to the system of unitary patent protection stand out for their complex and controversial nature. The reason is that this system rests on two legally different but interconnected pillars: EU Reg. 1257/2012 on the implementation of enhanced cooperation by the creation of unitary patent protection on the one hand, and, on the other, the Agreement between the Member States of the EU on the establishment of a Unified Patent Court (UPC) that will have exclusive jurisdiction over invalidation and infringement actions concerning the European patent with unitary effect and/or the classic European (bundle) patent. However, the link between unitary protection of European patents and the UPC Agreement is not only one of jurisdiction, but also one of substantive law. Thus, as regards the rules on infringement of the unitary patent, Reg. 1257/2012 refers to those contained in the UPC Agreement in respect of the European (bundle) patent.

Many in the patent law community hope to overcome the disruptive effects the withdrawal of the UK from the EU will produce on both the territorial scope of unitary patent protection and on the UPC as a court common to EU Member States. However, unitary patent protection cannot be dissociated from the general legal order of the EU’s Internal Market and extended to the UK once it has left the Union. Any such extension is incompatible with the autonomous character of EU law and its institutions, will result in a legally split unity for separate and separately regulated markets, and conflict with both the UK’s and the EU’s public interests in defining and implementing a patent policy of their own. Since the core objective of the UPC Agreement is to establish for the adjudication of unitary patent protection a common court of EU Member States that, as such, forms part of the judicial system of the EU, continued participation in the UPC Agreement of the UK post Brexit will not be possible. It would be incompatible with the EU’s foundational principle, which is integration by virtue of the operation of an autonomous legal order based on a complete system of legal protection by national courts acting as ordinary courts of the Union and in cooperation with the Court of Justice of the EU.

Keywords: European patent with unitary effect, Opinion 1/09, Brexit, Unified Patent Court, UPC, Regulation 1257/2012, European Union, EU, Internal Market, enhanced cooperation, integration, European Court of Justice, CJEU, European Patent Office, EPO, free trade agreement, FTA, patenting strategies