IP Minister Amanda Solloway has written to the House of Lords in response to their letter formally requesting confirmation that the UK would not be participating in the UPC. This request by the House of Lords followed a response given by the Government in February to a parliamentary question (recorded on Hansard) which said this was the case (see our post here); no formal statement had otherwise been made.
The IP minister's response was confirmatory - the UK will not take part in the UPC system. See the extract from her letter (of 24 March) below:
"As you will be aware the Government published our approach to negotiations with the EU on 27th February. This set out our vision for future cooperation between legally autonomous sovereign equals. It ruled out any obligation for our laws to be aligned with the EU's, or for the EU's institutions to have any jurisdiction in the UK. That explicitly included the Court of Justice of the EU.
Continued participation in the Unified Patent Court would mean ceding jurisdiction over key patent disputes in the UK to a court that is bound to apply and respect the supremacy of EU law, including judgments of the CJEU. Participating in such a system would be incompatible with our overall approach to future relations with the EU that I have set out above.
Consequently, the Government will not be seeking the UK’s continued participation in the Unitary Patent and Unified Patent Court."
Background
The House of Lords EU Justice Sub-Committee took evidence of the impact of the UK's non-participation in the UPC at a session on 10 March at which Daniel Alexander QC (leading patent barrister) and Julia Florence (then President of CIPA) spoke. Subsequently the Committee wrote to the IP Minister to request formal confirmation of the UK's intentions in relation to the UPC.
The future of the UPC
On 20 March, the German Constitutional Court released its decision by which it found, by a 5:3 majority, that the Act by which Germany was to accede to the UPC Agreement was void, because it was not passed with the required parliamentary majority. Without Germany’s ratification, the UPC Agreement cannot come into force. This decision, along with the UK's formal withdrawal as well as the uncertainties arising from Brexit, has thrown the future of the UPC into some doubt (see our post What’s next for the UPC project? Our analysis following the German Federal Constitutional Court decision).
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