The webinar, produced in association with RWS Inovia, is
just over an hour long and you can view and listen to it in
full on our webinar
As part of the discussion, we invited the audience to answer
some questions about their attitudes to the Unitary Patent with
and without the UK involved. Here are the results (though of
course they are not scientific).
The first question was: Do you plan to use or recommend the
Unitary Patent if it does come in? and the responses were:
- Selectively only: 70%
- Not initially: 21%
- For all my European applications: 6%
- No: 3%
The second question was: Would you use or recommend the
Unitary Patent if the UK was not involved? and the answers were
- Selectively only: 64%
- Not initially: 14%
- No: 18%
- For all my European applications: 4%
This confirms that the Unitary Patent is somewhat less
appealing without the UK - with a rather larger percentage of
people replying "No, I will not use it" - but not as much as
you might think.
In fact, more than two-thirds of our audience said they
would still use it either for all European applications or
selectively even without the UK involved.
UP without UK?
So is a Unitary Patent and UPC without the UK a realistic
possibility? The answer is probably yes - but not yet.
On the European level, enthusiasm for the new patent system
appears to remain strong. The Italian Senate has just approved ratification, meaning Italy could
become the 12th of the 13 required states to sign. Meanwhile,
reports from Germany suggest that companies
such as Siemens and Bayer back the system even without the
On the other hand, in the UK, things are much less certain.
Remember that Article 89 says the UK is one of three countries
that must ratify the UPC Agreement, and that London is due to
host part of the central division. So what happens following
the vote to leave the EU will determine whether or not the UPC
and Unitary Patent can go ahead in its current form.
Recognising the inevitably delay caused by the referendum
vote, the UPC Preparatory Committee this week confirmed that it is putting the
appointment of judges on hold.
Interpreting UK policy
Given the gradual and continuing development of government
policy since the Brexit referendum in June, it would be rash to
predict what the UK will do on something as specific as the
UPC. However, some things have become clearer over the past few
First, Prime Minister Theresa May has said that she will
trigger Article 50, which begins the process of leaving the EU,
by the end of March next year. This would mean the UK is likely
to leave the Union by spring 2019.
Second, the broad direction of government policy seems to be
in favour of a so-called hard rather than soft Brexit. This
makes it less likely that the UK would seek to remain in the
single market, for example by joining the EEA, or that it would
accept rulings by the European courts.
Third, there is growing pressure for Parliament to be able
to scrutinise and vote on the details of the negotiation and
even the decision to invoke Article 50 itself (this is the
subject of litigation which has been taking place
over the past week). If this happens, everything could be
Based on the information in the public domain now (including
latest legal and procedural developments, and
speeches by EPO officials) as well as conversations with
various practitioners, we've identified six possible outcomes,
and how likely they are to happen.
Six possible outcomes
||UK ratifies UPCA before
it leaves the EU in spring 2019. This would get the
system up and running soon while delaying the difficult
decisions about what to do post-Brexit.
||Increasingly unlikely in
current political environment.
||UK does not ratify UPCA
but does not explicitly say it will not do so either.
Given the UK veto in Article 89, the other member states
cannot go ahead until the UK leaves the EU (expected in
||Effectively where we are
now and for the foreseeable future.
||UK states it will
definitely not ratify UPCA. This would enable the other
participating member states to revise UPCA and go ahead
with the system without the UK. There would be further
discussions about fees and court locations. This outcome
apparently appeals to some in industry.
||Unlikely now, but could
become increasingly likely as negotiations develop during
||As part of Brexit
negotiations, UK states intention to remain part of UPCA
after leaving the EU. This would mean the UK accepting
some EU jurisprudence, and could also open up the
Agreement to other non-EU member states such as
Switzerland. Parts of Agreement would require
Legally possible according to some, but unlikely in
current political climate.
||Member states decide
that keeping the UK involved cannot be achieved within
UPCA, so decide instead to launch new initiative for EU
and non-EU states, possibly building on the work done for
European Patent Litigation Agreement (EPLA). Many IP
practitioners support this, but it would take many years
to agree and would face political opposition.
||Unlikely at the moment,
but may become more likely as time goes on.
||No agreement: it becomes
clear the UK will not ratify and there is insufficient
political will to resolve the outstanding issues. The
UPCA fails to come into force and no realistic
alternatives are proposed. The existing system of
national European patent validations and enforcement
||The most likely
Readers may be able to think of other possibilities, or
variations on these, and we would welcome any comments. As
negotiations develop and (we hope) the mist clears, we will
reconsider the likelihood of each of these outcomes in future