The European Parliament (EP) published on 5 November 2019 a research paper EU Patent and Brexit, an “In-depth Analysis” which considers how Brexit may affect the proposed unitary patent and Unified Patent Court (UPC) system. It was requested by the EP’s Committee on Legal Affairs (JURI) and commissioned, overseen and published by the EP’s Policy Department for Citizens’ Rights and Constitutional Affairs.
The paper focuses on the effects of Brexit on the UPC Agreement (UPCA). (It is generally recognised that the Unitary Patent Regulation EU 1257/2012 would require a UK-EU agreement to extend it to the UK.) In the paper’s Conclusion it notes that the UK’s ratification of the UPCA (in April 2018, after notifying the European Council of its intention to withdraw from the EU) sends a “somewhat mixed message”; for example, the UPCA provides for respect of EU law’s primacy and reference to the CJEU to ensure its proper application, yet the UK has stated that it wishes to leave the EU’s single market and the CJEU’s jurisdiction. However, the Conclusion then states: “On the other hand, it seems not per se legally impossible that the UK can stay within the UPCA, even when not an EU Member State.”
In its analysis the paper refers to the UK/EU’s draft Withdrawal Agreement and Political Declaration of 14 November 2018. Although these were recently amended, the latest draft (17 October 2019) contains the same provisions as those referred to in the paper (some with different article/paragraph/annex numbers). The paper notes that the draft Withdrawal Agreement contains no reference to patents (except that Regulation EC 816/2006 on compulsory licensing will apply to Northern Ireland), but that the (non-binding) Political Declaration provides that both the EU and UK “should provide for the protection and enforcement of intellectual property rights to stimulate innovation, creativity and economic activity going beyond [the TRIPs Agreement and WIPO conventions] where relevant” and that they “should establish a mechanism for cooperation and exchange of information on intellectual property issues of mutual interest, such as respective approaches and processes regarding trademarks, designs and patents.”
The paper includes a disclaimer, stating that it does not necessarily represent the EP’s official position. In considering the EP’s position, the paper notes that the EP was not involved with the UPCA but refers to the non-binding EP Resolution of 11 December 2012 on jurisdictional system for patent disputes.