UK to Submit to Primacy of EU Law?...Maybe for Patents

As the UK Government embarks on its journey of disentangling the UK from EU law and the jurisdiction of the Court of Justice of the European Union (“CJEU”), it is simultaneously continuing in its efforts to join a new European institution for which EU law will be supreme and the decisions of the CJEU binding precedent, namely the Unified Patent Court (“UPC”). Whilst it is important for patent holders to prepare themselves for the impending launch of the UPC, Brexit may reshape the UPC in the not too distant future. 

The UK Government’s Brexit agenda – “taking back control” 

The UK Government yesterday released its White Paper on the Great Repeal Bill, setting the agenda for the legislative framework of the UK in the post-Brexit world. In essence, the Great Repeal Bill will repeal the European Communities Act 1972 (the legislative basis for the UK’s membership of the EU) and incorporate existing EU law into UK law to avoid a legislative void when the UK leaves. The White Paper explains that “following the UK’s exit from the EU it will be UK law, not EU law, that is supreme” (para 2.3) and that “in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK” (para 2.12). Theresa May’s speech to the House of Commons following the activation of Article 50 explained that “we are going to make our own decisions and our own laws”. Bringing an end to EU law supremacy and the jurisdiction of the CJEU is front and centre of the UK Government’s approach to Brexit.

The role of EU law and the CJEU within the UPC 

The Agreement on a Unified Patent Court (the “UPC Agreement”) will establish a singular court structure designed to provide an efficient system for litigating the validity and infringement of the unitary patent, a new form of patent that will cover all participating states. Currently, patents grant purely national rights and patent holders must bring patent disputes before the courts of the country in which the patent is registered. Whilst the UPC will not be established by EU law (rather by an international agreement) it is tied to the EU in two key respects:

•  the UPC “shall apply [European] Union law in its entirety and shall respect its primacy” (Article 20 of the UPC Agreement); and 
• for the UPC “Decisions of the Court of Justice of the European Union shall be binding” (Article 21). 

The UPC will comprise a Court of First Instance (with branches in various locations) and the Court of Appeal, both of which will be able to make preliminary references to the CJEU, whose decisions will be binding. The UPC Court of Appeal will be located in Luxembourg. 

By ratifying the UPC Agreement the UK will be acknowledging the supremacy of EU law and that decisions of the CJEU will be binding in respect of a court that has jurisdiction over the UK, albeit limited to the field of patents. 

Squaring the circle 

The conflict appears clear. The supremacy of EU law in the UK and the jurisdiction of the CJEU in the UK are anathema to the UK Government. Furthermore, in Brexit Secretary, David Davis’, foreword to the White Paper on the Great Repeal Bill he explains that “Our courts will be the ultimate arbiters of our laws.” 

Yet, as we have previously reported (UK announces intention to ratify the Unified Patent Court Agreement) the UK has announced that it is pushing on with the UPC. This is significant not just for the UK, but for the UPC as a whole. Not only does the UPC Agreement specify that the UPC cannot launch without the UK, the UK is to host the life sciences and chemistry section of the UPC’s Central Division. In January this year at a commons select committee the IP Minister, Jo Johnson, confirmed the UK Government’s intentions to continue preparing to ratify the UPC Agreement. When questioned on the compatibility between the UPC and a post-Brexit UK his response was simply that the UPC is not an EU institution and that it would function independently of the UK’s EU membership. 

As explained in our most recent update (The Impending Launch of the Unified Patent Court), the UPC is set to become a reality later this year and there are important steps that patent holders should consider taking in anticipation of its launch (notably, the possibility for patent holders to opt out of the jurisdiction of the UPC in respect of particular patents is planned to start in early September). 

Whilst the UK Government’s position with respect to the UPC to date might be taken to indicate some willingness to accept CJEU jurisdiction and EU law supremacy in this limited sphere, this runs in stark contrast to the overarching position of the UK Government vis a vis the EU. Unless the UK Government is willing to accept an inroad into the UK’s sovereignty (which seems inherently difficult politically), the UPC will face significant changes in the not too distant future to enable it to function in a post-Brexit Europe. This might be, for example, that the UK is forced to withdraw from the UPC or it might be a change to the relationship between the UPC, EU law and the CJEU. 

An acceptance by the UK of the role of EU law and the CJEU in this field (whilst politically unpalatable for the UK Government) would provide greater certainty to patent holders and instill greater confidence in the UPC as an institution at this stage. 

Conclusion 

Whilst it is necessary for patent holders to prepare for the UPC, they should bear in mind that despite its pending launch the long-term structure of the UPC and the UK’s involvement post-Brexit are far from certain.