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New Scholarly Paper Says “UK’s Withdrawal From the EU Could Mean That the Entire (Unitary Patent) System Will Not Go Into Effect”

Posted in Europe, Patents at 7:16 am by Dr. Roy Schestowitz

Estelle Derclaye
Reference/credit: Estelle Derclaye’s homepage

Summary: A paper from academics — not from the patent microcosm (for a change) — provides a more sobering interpretation, suggesting quite rightly that the UPC can’t happen in the UK (or in Europe), or simply not endure if some front groups such as CIPA somehow managed to bamboozle politicians into it (ratification in haste, before the facts are known)

THE Mafia-like EPO has been largely responsible for attacks on truth itself. It corrupted the media, corrupted politicians, corrupted delegates and continues to corrupt everything it touches. That’s why an independent (or untainted by money) assessment is sorely needed.

Estelle Derclaye from the University of Nottingham, together with Graeme B. Dinwoodie from the University of Oxford, Lionel A. F. Bently from the University of Cambridge, and Richard Arnold from the High Court of England and Wales, wrote this paper (published yesterday). Here is the abstract:

This paper discusses the consequences on the main intellectual property rights (patent, copyright, trade marks and designs) as well as on trade secrets of a hard Brexit, namely an exit of the United Kingdom from the European Union which means that it will not longer be bound by EU law.

Brexit and the UPC cannot mix and a UPC proponent took note of it, saying that it includes “some comments on the UPC & EU law…”

Here is the relevant part (page 5):

The implications of Brexit in the field of patents are less dramatic since there is very little substantive EU patent law. The core of the patent system operating in EU Member States is a creature of an international convention, the 1973 European Patent Convention (EPC), as revised in 2000, rather than of EU law. The EPC has ten adhering states which are not EU Member States (as well as two extension states and two validation states). Leaving the EU does not require the UK to leave the EPC, and there has been no suggestion that it should do so.

However, Brexit does raise significant problems with respect to an ambitious procedural innovation that is intended to simplify and reduce the costs of patent enforcement. For
decades, the EU has been trying to establish a unitary EU patent that would allow enforcement throughout the EU. The unitary patent, if it eventually comes into effect, will allow the right holder to enforce a single patent throughout participating EU states through a single patent court established by an international agreement (rather than EU legislation).
But that court is conceptually a court of all Member States with an obligation to refer the supposedly few questions of EU law that will arise, because that conceptualisation is necessary to comply with a judgment of the Court of Justice. If the UK Government adheres to its political position that the UK will not in any way be subject to EU law and the Court of Justice, then Brexit will likely exclude the UK from that scheme because of the possible reference to EU law. More significantly, the agreement establishing the system required 13
Member States and France, Germany and the UK to ratify it for the system to start functioning and one of the central divisions was going to be based in London. So the UK’s withdrawal from the EU could mean that the entire system will not go into effect even for the remaining Member States (at the moment, Spain and Poland are not participating in the Unitary Patent Court). Surprisingly though, at the end of November 2016, the UK confirmed it will ratify the unified patent court agreement. So at least, for now, the new system is apparently saved (though to what real effect is not entirely clear).

Earlier this week we took note of IAM's paid-for promotion of the UPC. Earlier this month they wrote: “Today’s UK government White Paper on Brexit, section 2.3 on CJEU. Is that UPC wriggle room in last sentence?”

The patent microcosm and/or Team UPC is misleading and misinforming the government. They try to get some people like Jo Johnson to ratify something that he does not even understand, just in order to get him to sign something before the end of March (Chapter 50/Brexit).

As someone pointed out to IAM: “So UPC international, CJEU only rules on EU law, UK law not now EU law, CJEU ruling on UPC case doesn’t affect UK law directly?”

Sadly, facts have been absent from this debate and the EPO opened up its wallet to Britain's biggest newspaper, in exchange for them publishing lies about the UPC.

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