Hogan Lovells

Unitary Patent - politics and patents

The UK has signed up to the UPC Agreement (the "Agreement").  The UK will now have to ratify the Agreement and hence effectively put it to Parliament.  The Agreement unquestionably gives away some of the UK's sovereignty.  Mr Cameron has promised not to give away any more powers to the EU.  However this is not giving away powers to the EU - it is simply giving powers to a new judicial system.  Will Parliament balk at this?   One of the points which could be aired before Parliament is that Poland is refusing to sign the Agreement.  According to ministers in the Polish government the proposed system could harm the Polish economy. Indeed, a Deloitte report for the Polish government estimates that the Polish economy will suffer by some 80 billion Polish zloty (€19 billion) over the next 30 years if the country participates in the unitary patent system.  How this has been worked out we do not know.   However, this point could become the subject of further debate if a study were done in the UK and similar losses were possibly going to happen here as a result of ratification.  UKIP might consider commissioning such a study. 

It is interesting to note that certain countries regard the issue of ratification as susceptible to a referendum. Ireland and Denmark are both in this camp.

Talking of referenda prompts the next question.  Cameron has promised a referendum in 2017 if the Tories win the next election.  If the UK was to leave the EU what would the consequences be for the new Unitary Patent system?  A UK national who held a Unitary Patent would no longer have cover in the UK.  Somehow the UK Patent Office has to step in to give rights to cover the UK.  The London Unitary Patents Court would have to be relocated and once wonders what would happen to any pending case before the Courts on the UK leaving the EU.  One also wonders the effect this would have on the UK patent profession which has fought so hard to get an aspect of the Unitary Patents Court system based in London.  It would almost certainly be a serious blow to the patent profession.

One cannot help feeling that the storm created in the world of UK patents is not going to register with the average British voter.

By Hogan Lovells partner Nicholas Macfarlane and trainee solicitor Beth Williams

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