Following the UK government’s recent statement that the UK will not be seeking involvement in the unitary patent and Unified Patent Court (UPC) system, the UK parliament’s House of Lords EU Justice Sub-Committee met yesterday to examine the impact of that decision on both UK businesses and inventors and the Court.  Julia Florence, Past President of the Chartered Institute of Patent Attorneys (CIPA), and Daniel Alexander QC, a leading IP barrister, were “witnesses” giving evidence to the Committee on the issue, including on the five questions set out in this House of Lords media notice and below.  A TV recording of the meeting is here.

• Why development of the Unified Patent Court was pursued outside the EU’s formal structure and why was it necessary to pass EU legislation in support of the Agreement?
• The nature of the formal relationship between the Unified Patent Court and the Court of Justice of the EU.
• Could aspects of the United Patent Court be amended to allow the UK to participate while maintaining is ‘red line’ over EU Court of Justice jurisdiction?
• The impact on business in the UK if we do not participate in the establishment of the United Patent Court.
• If the UK does not participate in the Court is it likely it will still go ahead without us given the prominent role the UK has played in ratifying agreement for the its creation.

The witnesses first explained the role of the EPC and EPO in the European patent system (and this being unrelated to the EU) and the rationale for creating the UPC as a single, international court in which to enforce, or revoke, patents for a whole area (beyond national).  Much of the discusssion then focused on the role of EU law and the CJEU in the UPC, the government having stated: “Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”  The witnesses explained that: (i) EU law has very limited impact on the European patent system, being relevant only to SPCs (for a very narrow, albeit important, category of inventions), remedies (generally having adopted UK law), stem cell research, and competition law (in so far as relevant to patent law); (ii) the UPC would only refer to the CJEU questions on interpretation of those aspects of EU law (not a whole case); and (iii) the CJEU states principles, leaving it to the referring court to apply those to the case.  Daniel Alexander summarised the role of the CJEU in the UPC as being a light touch, indirect and in limited areas and he considered the reason the government gave for the UK not participating was unjustified, and that participation would help, not hinder, the UK’s aims.  The witnesses drew attention to how the UK, and UK common law procedures, had had much influence on how the UPC system will work, with the other countries welcoming UK legal expertise, and now the UK would have no influence in the system.