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Brexit referendum is behind us. But what’s next ?

Brexit referendum is behind us. But what’s next ?

UPC project is on hold.

It will take several years for the UK to actually exit EU (Art. 50(2) of the Convention of the European Union). The UK has first to notify its intention to withdraw from the EU to the European Council, which wasn’t done yet, and then go through a two year (extendable) procedure of negotiations over the future relationship between the exiting state and the EU.

This gives a lot of uncertainties.

Whilst it remains a member state, the UK is one of the 3 countries that must ratify the Agreement to enable it to come into effect. As a reminder, the system can only come into effect when ratified by 13 countries, including the 3 EU states in which the most EP patents have effect the year preceding year in which the agreement was signed (Art. 89 UPC Agreement), i.e. currently : UK, Germany and France.

 

How could the UPC project continue ?

One possibility is to wait patiently for the change of the legal situation of the UK as e EU member state, and it will be automatically replaced in this top-3 by Italy, which is about to complete its ratification by the way. No idea how long this will take, as IP issues are probably not on the top of the list of the Brexit issues UK government has to deal with…

Another possibility is to have the UK ratify the Agreement without delay. This option is very unlikely to happen on a political standpoint : how could the UK government go further on this Europe-oriented matter whereas the referendum was clearly in favor of exiting Europe ? And in case the UK chooses this option, this only postpones the resolution of problems : what will happen after the UK actually exits EU ?

Last idea is to envision a modified UPC system with a participation of the UK. This would be a good compromise to keep the UPC system attractive regarding the proceeding simplification that was one of the main initial objectives of the UPC system. But this would require probably years of negotiations, as it changes one of the fundamental basis of the UPC system, i.e. that only EU member states can participate in a UPC style arrangement of sharing patent jurisdiction.

 

Conclusion : wait and see…

IP is probably not a primary issue among all the Brexit-related matters, however it is indeed an important issue that the UK will have to cope with, as it deals with business and the accessibility of the country. Of course we can imagine all the scenarios about that, but the wise thing is probably to wait for the effective exit of the UK and see whether the UPC projet is still of interest on both a legal and business standpoint…