Will the UK participate in the Unitary Patent system despite the Brexit vote of 23 Juni 2016? It has been the most important question concerning the system for over five months, but probably not much longer. Various sources expect the UK to make an announcement about its plans with the UP and UPC during the upcoming meeting of the EU Competitiveness Council, 28 November 2016 in Brussels.

unified patent courtAccording to a Bristows report, ‘the UK Minister of State for Energy and Intellectual Property, Baroness Neville-Rolfe, will state how the UK intends to proceed regarding its participation (or not) in the system’.

Since the Brexit vote, the future of the UP system has been clouded in uncertainty. Ratification by the UK of the UPC Agreement is mandatory for the launch of the system, but after the Brexit vote it seemed this requirement could kill the UP, as it wasn’t sure at all the UK would still be prepared to remain in the new patent system.

Both if the UK says it won’t participate or if it says it wants to ratify the UPCA, changes to the system will be necessary. But whatever the decision of the UK, there will be a Unitary Patent system, according to Alexander Ramsay, chairman of the UPC Preparatory Committee. He was adamant about this in an interview with the German legal website JUVE published earlier this week: ‘If we can’t have the British in, we will do without them’.

UK flagAccording to Ramsay, it is important to realize in what phase the UP system is. As he told JUVE: ‘Much time and money have been invested. The UP system is already much more than a theoretical system which only exists on paper (…). There are court buildings, there is an IT-system. Contracts with service providers have been signed, we’re in the middle of the selection procedure of judges. (…) Most users of the system in Europe want the UPC to start without much delay. So that’s what will happen.’

Over the last months, some analysts have argued the Unitary Patent system isn’t worthwhile without the UK and suggested the Brexit setback should be used to create another European patent system, in which not only EU members can participate, but all 38 member states of the EPC. Forget about it, would probably be Ramsay’s reaction. He pointed out to JUVE that ten years have passed since the talks about the Unitary Patent system started: ‘The UPC won’t die (…). Whoever wants a new start and another court, would need to reckon with ten more years of negotiations.’

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