Following the vote in the House of Commons on 20 December 2019, it seems that the United Kingdom will now leave the EU on 31 January 2020.
For UK patent attorneys and their clients it will be business as usual at the European Patent Office, which is not an EU institution.
But what are the consequences for UK participation in the EU Unified Patents Court (UPC) and unitary patent?
The UPC Agreement (UPCA) has been ratified by the UK and will come into force once Germany has also ratified. German ratification has been delayed pending the outcome of a complaint in the German Federal Constitutional Court (Bundesverfassungsgericht - BVerfG). When questioned about the delay, in a recent interview with Managing IP the judge overseeing the case, Justice Peter Huber, said that he intends to decide the case in the first quarter of 2020, and described suggestions that Brexit had been a factor in delaying the decision as "bulls**t" (the interview was held in English). Nevertheless, it seems optimistic for German ratification to occur prior to 31 January 2020.
So, what happens if the UPCA comes into force after Brexit, and what will be the status of the UK?
Good question. Most commentators appear to agree that, in principle, EU regulations can extend to non-EU states by agreement, and that mechanisms could be found by which the UK could participate as a non-EU member. However, as noted in the recent "EU Patent and Brexit" research paper from the European Parliament's Policy Department for Citizens’ Rights and Constitutional Affairs, the question seems more political than legal, i.e. would the new UK government wish to remain in the UPC given that the UPCA specifies the primacy of EU law and the jurisdiction of the CJEU?
Whichever way things fall, 2020 should be an interesting year...
MPs have backed Prime Minister Boris Johnson's plan for the UK to leave the EU on 31 January.