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16 July 2018
The UK Government published its white paper regarding “The future relationship between the United Kingdom and the European Union” (found here). This provides the strongest indication yet that the UK Government will act to stay a part of the Unitary Patent Package (UPP) after Brexit.
The UK Government had already stated that it is planning to be a part of both aspects of the UPP (the Unified Patent Court and the unitary patent) at the beginning of their implementations. However, before now, there has been no formal indications of whether the UK was interested in continuing to play a part long term after Brexit and after EU law ceases to have direct effect in the UK.
With the publication of the white paper, the Government has now stated that it “intends to explore staying in the Court and unitary patent system after the UK leaves the EU” and also that “The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis”.
The only remaining hurdle for introduction of the UPP is ratification of the Court Agreement by Germany. As things stand, German ratification is on hold until their Constitutional Court hears a complaint disputing the legitimacy of the Unified Patent Court (UPC) itself. The extent to which that complaint will delay the implementation of the UPP is still unknown. However, if and when the delays in Germany are overcome, it currently seems likely that the UK will elect to use appropriate legal and political mechanisms to keep the UK in at least the UPC beyond its exit from the EU.
A further noteworthy point of the white paper is an indication that the UK intends to maintain participation in the European Medicines Agency (EMA) which is an EU agency. Marketing authorisations issued by the EMA can be used in order for patent proprietors to obtain Supplementary Protection Certificates (SPCs) covering the UK. Should the UK continue to participate in the EMA after Brexit, it appears that the current steps for obtaining SPCs might be little changed.
For further information regarding the UPC and Unitary Patents, please refer to the Unitary Patent Package page on our website or click here.
Russell Barton and James Mitchell
Electronics, Computing & Physics group
If you require further information on anything covered in this briefing, please contact your usual contact at the firm.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP, July 2018