Background
Accordingly to Marc van der Burg, legal advisor and examiner at the Netherlands Patent Office, the Unified Patent Court (UPC) was thought as a solution to one of the problems that the territoriality of IPRs, in specific patents, has in the EU’s context. As most of us know, the EU consist of 28 countries that speak different languages and have separate patent systems, a situation that may bring some problems to inventors and companies. The first of the problems is that they had to file patent applications in each of the specific countries in which they wanted protection, having to assume excessive costs derived from translations and government fees and to adapt their filing strategies to the procedural rules foreseen in each country. Even though these issues were mitigated by the adoption of the PCT and EPC, they were fully tackled down with the creation of the Unitary Patent Regulation.

The second problem derived from the territoriality of patents, is that patent owners may have to participate in parallel litigations regarding the same European patent in each of the countries where a patent infringement is being committed. This problem also has consequences for defendants in such cases, whose possibility to invoke invalidity may vary depending on the country in which the action was brought. Also, if they are carrying out commercial activities in several countries of the EU, they may have to initiate actions or defend themselves in all such countries. Therefore, the principle of territoriality entails expensive litigation costs and the uncertainty of obtaining different decisions, as national courts may come to different interpretations of the same European patent. The importance of this issue is reflected in the efforts of the EPO to generate overviews of national laws and practice in the EPC contracting states regarding patent litigation.

The UPC and Brexit
Is in this context that EU members celebrated the Agreement on the Unified Patent Court, which will not only have competence over patents with unitary effect, but also over classic European patents. Hence, the UPC will have exclusive competence of actions for actual infringement or threatened infringements of patents and related defenses, actions for declarations of non-infringement of patents, actions for provisional and protective measures and injunctions, actions for revocation of patents and counterclaims for revocation of patents, among others. It is worth noting that the path to reach such agreement was not easy, but at the end common interests were able to surpass the obstacles that were faced.

Despite the efforts invested in the negotiations of the UPC, Brexit has raised some concerns regarding its adoption considering that ratification of the UPC by at least France, Germany and the UK is necessary for the Agreement to enter into force. However, since the publication of the Brexit White Paper, it was clear the UK’s intention to participate in the unitary patent system and the UPC, ratifying the correspondent agreement on April 26, 2018. Notwithstanding, if the UK wants to remain within the UPC, it would have to accept the jurisdiction of the CJEU and EU’s principles and laws, as the UPC actually has the same position as a national court of a EU member state  and is required to follow the interpretation of EU law by the Court of Justice of the European Union and has to request preliminary rulings. Also, it could be interpreted that the UPC prohibits the participation of States that are not members of the EU. In my opinion, Brexit does not have the last word in the implementation of the UPC, even though it may present difficulties and obstacles in the near future. EU’s Member States have invested considerable time and effort into the UPC to let it die, working with the common ground of the benefits that the same and the unitary patent will bring.

Hence, with or without the UK, the EU will probably try to find a way to implement the UPC; nevertheless, as it is a political issue rather than one referring to legality, it may pass some time until a solution has been found. Moreover, the complaint that the German Constitutional Court still has to decide could bring more serious concerns for the final adoption of the UPC and, in case of an unfavorable decision, could decide its fate. In conclusion, Brexit is not the only and most serious obstacle that the UPC is facing, and its fatal fate could be determined by the German Constitutional Court by means of a judicial decision rather than a political one.