Joff Wild

The European unitary patent system is on the brink of becoming reality following Italian ratification of the Unified Patent Court agreement. The EU Council was formally notified on 10th February of the decision, making Italy the 12th country to finalise its membership. This means that once Germany and the United Kingdom do the same, the UPC will come into being. All the signs are that this will be sometime this year. When it does happen, it will be possible to obtain and enforce a single patent right in a market covering a population of over 300 million, including four G8 economies.

With injunctions likely to be widely available, specialist judges, relatively low costs and the time to get to a decision – at least initially – set to be measured in the months rather than the years, it is possible that the UPC could soon become a favoured forum for plaintiffs – especially given the enforcement uncertainties that continue to exist in the US. One thing is for sure: the patent world is set to change forever.

However, as ever in Europe what looks simple on paper may be less so in reality. Most observers were surprised when, despite the vote for Brexit in last June’s referendum, the UK government announced that the country would go ahead with UPC ratification. Writing on the day the decision was announced, I stated:

Not only will courts based outside the UK for the first time have the right to decide whether patents granted to cover the UK are valid and infringed, but the Court of Justice of the European Union will be providing guidance on the interpretation of EU law when questions are referred to it by the UPC (though it cannot decide a case and once the guidance is offered it would be down to the UPC to apply that). A highly likely future scenario is that British patent owners with rights covering the UK will find those rights invalidated without a British court or judge ever having a say on the matter.

That, I observed, runs very contrary to the Brexit narrative of the UK “taking back control”:

For dyed-in-the-wool anti-Europeans in the UK that will prove to be a very bitter pill to swallow. However, as ratification already has Parliamentary approval, there is little in practical terms that those opposing the deal can do. The one hope might be to seek to create a “betrayal” narrative in the Eurosceptic British press to build pressure on the government to change its mind.

Well, that is exactly what they have now done. In the House of Commons, Douglas Carswell - the only MP representing the right wing, deeply anti-European UK Independence Party - has tabled an early day motion in the House of Commons which reads: “That the Protocol, done at Brussels on 14 December 2016, on Privileges and Immunities of the Unified Patent Court (Cm. 9405), a copy of which was laid before this House on 20 January 2017, should not be ratified.”

The move was accompanied by an article in the populist (though not that popular) Daily Express with the headline “EXPOSED: Secret plan to tie Britain to EU after Brexit is being kept ‘under the radar’.” The Express accuses ministers of seeking to avoid a vote on UPC ratification and claims that membership of the system “means that Britain will still be subject to the European Court of Justice (ECJ) after Brexit and mean we are still tied in with single market rules despite promises by [UK Prime Minister] Theresa May that we will completely leave”.

It’s important not to read too much into this. An early day motion is a way in which backbench MPs draw attention to issues. It can be signed by any number of them, but the government is under no obligation to take any notice. What’s more, the Daily Express is probably the least read of the major right-wing, anti-European newspapers in the UK and so carries relatively little influence.

However, what we can now say is that the UPC is on the radar screen of the British anti-EU right in both the legislature and the media. If a few MPs do sign the early day motion and the story is picked up by more influential outlets, such as the Daily Mail and the Daily Telegraph, it is not impossible that the government could be forced into reassessing its position. Since the referendum, Theresa May has seemed to give special deference to the concerns of the most vocal anti-Europeans and in order to avoid an argument, it is conceivable that she might do so again – especially as there is so much uncertainty surrounding the UPC’s legal status.

It should be emphasised that we are a long way from that happening, but it was noticeable in the original press release announcing the decision to ratify, the following clarification was inserted:The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges”; while soon after being appointed the UK’s IP minister Jo Johnson MP (brother of foreign secretary Boris Johnson) produced an explanatory memorandum on the UPC which makes absolutely no mention of the role the Court of Justice of the European Union will play. A cynic might conclude that the government is seeking to sweep the EU element of the UPC under the carpet. If MPs and the anti-European media do not allow that to happen, 2017 may not see the birth of the unitary system after all.