Bonum Certa Men Certa

Barker Brettell is Wrong About Unified Patent Court (UPC) and the United Kingdom

Barker Brettell



Summary: The United Kingdom (UK) cannot participate in a system resembling the UPC, wherein European courts (that may not even speak English) enforce patents in Britain, but Team UPC won't let such 'pesky' facts get in the way

THERE has been a great deal of misinformation lately regarding the Unified Patent Court Agreement (UPCA). The EPO played a role in dissemination of such 'information', notably Team Battistelli (higher up management) together with Team UPC, which had crafted UPCA for the sole purpose of lining its pockets (more litigation). We already wrote several rebuttals over the past couple of weeks, e.g.:



Yesterday we saw a UPC critic (Moreno) alluding to this recent article (April 27th, 2018) from Barker Brettell, a firm which we mentioned here quite a few times [1, 2, 3]. It wants us to think that "the UK now has a great bargaining chip for Brexit negotiations" because of UPC.

As Moreno put it: "Bargaining chip? I don't get it. The UK has lost the power to decide if/when the UPC comes into force."

Also from the same article: [via]

We are now effectively just one step away from the UPC coming into force. That can happen once Germany ratifies the Agreement. Due to an unexpected challenge in the German courts last year, with an allegation that the UPC is ‘unconstitutional’, the German ratification is on hold while that gets settled. The case is due to be heard later this year. Germany is clearly a key player in the UPC system and things will definitely get interesting if the challenge is successful.


Based on various sources close to the court, the case may take several years to be decided. And even then, if somehow the court miraculously decided that EPO abuses are absolutely fine, what will it say about Brexit? It renders the whole agreement (UPCA) moot and this too was brought up in the complaint. "Proof of the pudding" was recently quoted here regarding this point and last night he followed up with the following comment:

Not a single response to any of the questions that I posed last week. I know that this is a bank holiday week and so things might be a little slower than normal. However, I would have thought that a least one proponent of the UPC might be tempted to answer my questions ... especially as they raise issues that question the legal basis for (of the workability of) the entire UP project.

Perhaps I should not be surprised. After all, I got no answers whatsoever to repeated questions about the legal basis for the Court of Justice receiving preliminary references from the UPC post-Brexit (if, according to the "perceived wisdom", the UPC is NOT an EU [Member State] court ... and hence will NOT be able to rely upon Article 267 TFEU for making preliminary references).

It is a shame to see such a total absence of engagement on such crucial issues. This appears to me to suggest that proponents of the UP system are happy to launch "at risk", and without any sort of "safety" or "stress" testing of crucial components of the system. I can only hope that, in the long run, this approach does not prove to be as irresponsible and reckless as it appears to me right now.


It isn't true that Germany is the last barrier; Britain itself cannot participate in anything like the UPC (no matter what they try to call it this time around). Putting aside the fact that a UPC-type regime would be terrible for Europe; its main purpose would be to empower law firms and their biggest clients, which aren't even European.

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