The Unitary Patent System is expected to be operative for the first half of 2019, linked to the creation of the Unified Patent Court. The UP is a patent with unitary effect. It will co-exist with national patents and existing European patents. The Unified Patent Court (UPC) will be a common Court for all the Member States (for infringement and revocation proceedings).
Presently, 26 Member States have become a party to this system (Spain and Croatia have not). Outstanding ratifications could take place successively, anyway. A different question is the impact of Brexit on Unitary Patent Protection and its Court, something that has been the object of a recent study by Mr. Matthias Lamping and Mr. Hanns Ullrich, of the Max Planck Institute for Innovation and Competition (MPI). Concerning Brexit, nothing is certain yet, but as things stand Britain may be leaving the European Union in March 2019.
Now, the questions raised by the two Max Planck specialists, essentially relate to whether if the Unified Patent Court Agreement was opened to accession by third countries (not Members of the European Union, such as the United Kingdom could become to be) it would be in conformity with the EU Legislation. Also, they question whether this would obstruct the European Union legal capacity to control and regulate the protection of innovation within the boundaries of the EU.
One of the hints given in the study relate to article 87 of the Unitary Patent Court Agreement. Art. 87(2) provides, ‘The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law’. Art. 12(3) provides ‘The Administrative Committee shall adopt its decisions by a majority of three quarters of the Contracting Member States’ and then, Art. 87(3) provides, ‘A decision of the Administrative Committee taken on the basis of paragraphs 1 and 2 shall not take effect if a Contracting Member State declares […] that it does not wish to be bound by the decision’. According to the authors of this study, ‘In this case, a review conference would have to be convened, which means that all contracting states, including non-EU states, have a say regarding the UPCA’s envisaged revision’ (which means that the UK would be in a position to obstruct the transposition of EU legislation into the UPCA).
Paper 18-20, posted on 10/09/2018, reaches the conclusion that ‘unitary patent protection cannot be dissociated from the general legal order of the EU’s Internal Market and extended to the UK once it has left the Union’, as it would be incompatible with the autonomous character of EU law and its institutions.
All in all, the main issue to be determined is whether, in case the UK definitely leaves the European Union, the Unitary Patent Court Agreement would be compatible with the European Union Legislation, something that should be clarified by the Court of Justice of the EU.